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Human Rights - Joint Statutory Committee Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 Bills and Legislative Instruments introduced 17-20 September 2012 Report, October 2012


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Parliamentary Joint Committee on Human Rights

Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011

Bills and Legislative Instruments introduced 17-20 September 2012

October 2012

Fif t h r epor t of 2012

*« AU STR ALIA,.if-

Parliamentary Joint Committee

on Human Rights

Examination of legislation in accordance with the

Human Rights (Parliamentary Scrutiny) Act 2011

Bills and Legislative Instruments

introduced 17-20 September 2012

Fifth Report of 2012

October 2012

© Commonwealth of Australia 2012

ISBN 978-1-74229-706-4

This document was prepared by the Parliamentary Joint Committee on Human Rights and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Membership of the committee

Members

Mr Harry Jenkins MR, Chair

Mr Ken Wyatt AM MR, Deputy Chair

Senator Gary Humphries

Ms Melissa Parke MR

Senator Dean Smith

Senator the Hon. Ursula Stephens

Mr Dan Tehan MR

Senator Matt Thistlethwaite

Mr Kelvin Thomson MR

Senator Penny Wright

Hasluck, Western Australia, LP

Australian Capital Territory, LP

Fremantle, Western Australia, ALP

Western Australia, LP

New South Wales, ALP

Wannon, Victoria, LP

New South Wales, ALP

Scullin, Victoria, ALP

Wills, Victoria, ALP

South Australia, AG

Functions of the committee

The Committee has the following functions:

a) to examine Bills for Acts, and legislative instruments, that come before either

House of the Parliament for compatibility with human rights, and to report to

both Houses of the Parliament on that issue;

b) to examine Acts for compatibility with human rights, and to report to both

Houses of the Parliament on that issue;

c) to inquire into any matter relating to human rights which is referred to it by the

Attorney-General, and to report to both Houses of the Parliament on that

matter.

Committee secretariat

Ms Jeanette Radcliffe, Secretary Ms Renuka Thilagaratnam, Principal Research Officer Ms Lauren McDougall, Executive Assistant

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3823

Fax: 02 6277 5767 E-mail: human.rights(a>aph.gov.au Internet:

http://www.aph.gov.au/Parliamentarv Business/Committees/Senate Committees?u rl=humanrights ctte/index.htm iii

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Abbreviations

AbbreviationDefinition

CAT

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CERD Convention on the Elimination of all forms of Racial Discrimination

CEDAWConvention on the Elimination of Discrimination against Women

CRC Convention on the Rights of the Child

CPRD Convention on the Rights of Persons with Disabilities

FRLIFederal Register of Legislative Instruments

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

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Executive Summary

This report provides the Parliamentary Joint Committee on Human Rights' view on the compatibility with human rights as defined in the Human Rights (Parliamentary Scrutiny) Act 2011 for bills and delegated instruments introduced into the Parliament during the period 17 to 20 September 2012.

Part 1 * Bills introduced 17-20 September 2012

The committee has commented on the following bills

Clean Energy package of seven bills 3

Competition and Consumer Amendment (Australian Food Labelling) Bill 2012 7

Competition and Consumer Amendment (Australian Food Labelling) Bill 2012 [No 2] 7

Higher Education Support Amendment (Streamlining and Other Measures) Bill 2012 10

Law Enforcement Integrity Legislation Amendment Bill 2012 12

Migration Amendment (Reform of Employer Sanctions) Bill 2012 22

Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 25

Superannuation Auditor Registration Imposition Bill 2012 25

Tax Laws Amendment (2012 Measures No. 5) Bill 2012 31

The following bill was introduced without a statement of compatibility

Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012 34

The committee has no comment on the following bills which are considered unlikely to raise any human rights concerns

Environment Protection and Biodiversity Conservation Amendment (Making Marine Parks Accountable) Bill 2012 [No 2] 36

Federal Circuit Court of Australia Legislation Amendment Bill 2012 36

Health and Other Legislation Amendment Bill 2012 37

National Health Security Amendment Bill 2012 38

This report is circulated to all Members and Senators. Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Personal Liability for Corporate Fault Reform Bill 2012 39

Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Bill 2012 40

The committee acknowledges the following response to comments made on bills in the Second Report of 2012

National Portrait Gallery of Australia Bill 2012 42

The committee acknowledges the following response to comments made on bills in the Third Report of 2012

Corporations Legislation Amendment (Derivative Transactions) Bill 2012 43

Part 2 * Legislative Instruments introduced 17-20 September 2012

The committee has sought clarification of claims that the following legislative instruments do not engage human rights

Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2012 48

The committee acknowledges the following responses to comments made on instruments in the Second Report of 2012

Fair Work Amendment Regulation 2012 (No. 2) 50

Road Safety Remuneration Regulation 2012 50

Appendices

Appendix 1 * Responses to comments made in the Second and Third Reports of 2012 53

Appendix 2 * Full list of Legislative Instruments introduced 17-20 September 2012 63

Appendix 3 * Practice Note 1 67

Mr Harry Jenkins MR Chair

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Part 1

Bills introduced 17-20 September 2012

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The committee has commented on the following bills

Clean Energy package of seven bills " Clean Energy (Charges - Customs) Amendment Bill 2012

" Clean Energy (Charges - Excise) Amendment Bill 2012

" Clean Energy (Unit Issue Charge-Auctions) Amendment Bill 2012

" Clean Energy Amendment (International Emissions Trading and Other Measures) Bill 2012

" Excise Tariff Amendment (Per-tonne Carbon Price Equivalent) Bill 2012

" Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment (Per-tonne Carbon Price Equivalent) Bill 2012

" Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment (Per-tonne Carbon Price Equivalent) Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Climate Change and Energy Efficiency; Treasury; and Sustainability; Environment, Water, Population and Communities

Committee view

1.1 The committee seeks further information from the Minister for Climate Change and Energy Efficiency on the impact of the Clean Energy Amendment (International Emissions Trading and Other Measures) Bill 2012 on the right to a fair hearing in article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) and whether the bill may be considered to also engage the criminal process

rights in article 14 of ICCPR.

1.2 The committee also draws the attention of the Minister for Climate Change and Energy Efficiency, the Treasurer and the Minister for Sustainability, Environment, Water, Population and Communities to the requirement for each bill to be accompanied by a statement of compatibility and the committee's expectations for statements to provide the necessary information in an accessible way.

Purpose of the bill

1.3 This is a package of seven bills sponsored by the Minister for Climate Change and Energy Efficiency, the Treasurer and the Minister for Sustainability, Environment, Water, Population and Communities to facilitate linkages between Australia's carbon pricing mechanism and foreign emissions trading schemes.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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1.4 All seven bills are accompanied by a single statement of compatibility, prepared under the authority of the Minister for Climate Change and Energy Efficiency.

1.5 The statement of compatibility falls short of the committee's expectations as it does not set out the relevant information in an accessible manner. In particular, the statement does not consider each bill individually and does not specify the provisions in the bill that are considered to engage human rights.

Compatibility with human rights

Right to privacy

1.6 The statement states that the bills engage the right to privacy because they enable the publication of information which could include personal information, and provide for the making of regulations which could require certain persons to provide personal information to particular entities.

1.7 The statement concludes that the bills are compatible with human rights because 'the nature of the information to be published is precisely defined and the publication requirement does not involve the exercise of any discretionary powers'. The statement also notes that 'a statement of compatibility with human rights would be prepared in relation to any regulation made under [the relevant] regulation≠ making power[s]' in the bills.

1.8 The discussion in the statement does not identify the particular provisions in the bills which are considered to engage the right to privacy.

1.9 The committee considers that the bills do not appear to raise any concerns with regard to the right to privacy in article 17 of ICCPR.

Right to a fair hearing and criminal process rights

1.10 New Part 6B in item 23 of the Clean Energy Amendment (International Emissions Trading and Other Measures) Bill 2012, which deals with the relinquishment of Australian-issued international units (AIIU). In particular:

" Proposed section 66C provides that a court may, on application by the Director of Public Prosecutions or the Regulator, order a person to relinquish a specified number of AIIUs if a person is convicted of a prescribed offence relating to fraudulent conduct and the issue of AIIUs is attributable to the commission of the offence.

" Section 66C will apply retrospectively to offences committed before the commencement of these powers.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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" The failure to comply with a relinquishment requirement is subject to an automatic administrative penalty under proposed section 66F. in addition, a person commits a criminal offence (subject to 3-10 years imprisonment) if they enter into 'schemes' aimed at ensuring that a body corporate or trust

becomes unable to pay an existing or future liability to pay an administrative penalty under section 66F (proposed sections 66L-66M).

" If an amount payable by a person under section 66F remains unpaid after the time when it became due for payment, the person is then automatically liable for a late payment penalty under proposed section 66G.

" The Regulator does not have any discretion to remit administrative penalties but may remit late payment penalties in certain circumstances (subsection 66G(2). A decision by the Regulator to refuse to remit a late payment penalty is reviewable decision (item 26).

1.11 The statement of compatibility does not address whether or not these provisions are compatible with human rights.

(i) Right to a fair hearing

1.12 The committee notes that section 66C would appear to operate as a forfeiture regime. As such, applications for relinquishment orders under section 66C are likely to engage the right to a fair hearing in article 14(1) of ICCPR. The requirement of a fair hearing relates to the principle of equality of arms. The main factor when considering 'fairness' is whether the respondent's rights were sufficiently safeguarded vis-a-vis the complainant. That is, both parties must be afforded a reasonable opportunity to present his or her case under conditions that do not put either party at a substantial disadvantage, it is generally accepted that this requirement is less exacting in civil proceedings than in criminal proceedings.

1.13 The bill does not appear to contain any specific safeguards for making and determining an application for a relinquishment order. For example, it would appear that an application may be made without notifying the person against whom the order is sought and a court may hear and determine an application in the absence of the affected person. Without these procedural guarantees an affected person may

not have an adequate opportunity to present their case such that their right to a fair hearing is not limited.

(ii) Criminal process rights

1.14 Depending on whether the regime could be characterised as imposing criminal penalties, these provisions may also engage the criminal process rights in article 14 of ICCPR. These rights apply where a person is exposed to a charge or

penalty that is criminal in nature. The approach under international and comparative

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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human rights law is to look at the substance and the effect of the proceedings, rather than their label. Therefore, it is possible for a civil regime which subjects a person to a high penalty and is intended to be punitive or deterrent in nature to constitute a 'criminal penalty' for the purposes of these rights.

1.15 Before forming a view on whether the bill is compatible with human rights, the committee proposes to write to the Minister for Climate Change and Energy Efficiency to seek further information on the impact of s66C, s66F and s66G of the Clean Energy Amendment (International Emissions Trading and Other Measures) Bill 2012 on the right to a fair hearing in article 14(1) of ICCPR, including whether the provisions may be considered to also engage the criminal process rights in article 14 of ICCPR.

1.16 The committee also proposes to write to the Minister for Climate Change and Energy Efficiency, the Treasurer and the Minister for Sustainability, Environment, Water, Population and Communities in an advisory capacity to outline the committee's expectations for statements of compatibility, in particular:

" The Human Rights (Parliamentary Scrutiny) Act 2011 requires each bill and disallowable legislative instrument to be accompanied by a statement of compatibility. The provision of a single statement for a package of bills does not meet this requirement.

" The committee expects statements to provide sufficient detail to allow it to undertake its scrutiny tasks efficiently. This includes specifying the particular provisions of the bill that are being discussed. Where no rights are engaged, the committee still expects that reasons should be given to support this conclusion.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act2011 is invited to do so.

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Competition and Consumer Amendment (Australian Food Labelling) Bill 2012

Introduced into the House of Representatives on 17 September 2012 By: Mr Adam Bandt MP

Competition and Consumer Amendment (Australian Food Labelling) Bill 2012 [No 2]

Introduced into the Senate on 17 September 2012 By: Senator Christine Milne

Committee view

1.17 The committee seeks further information with regard to the reverse burden provisions in the bills before forming a view whether they are compatible with the presumption of innocence in article 14(2) of the International Covenant on Civil and

Political Rights (ICCPR).

Purpose of the bill

1.18 These are identical bills which amend the Competition and Consumer Act 2010 to create new definitions and standards in relation to the country of origin labelling on packaged and non-packaged food. The bills also make consequential amendments to the Imported Food Control Act 1992 to reflect the changes to the Competition and Consumer Act 2010.

1.19 The statement of compatibility states that the bill is compatible with human rights because it does not engage any of the applicable rights or freedoms.

Compatibility with human rights

Presumption of innocence

1.20 The bills introduce civil penalty provisions for contraventions of the new food labelling requirements. Proposed subsection 137C(3) in item 3 prohibits a person from possessing or having control of food for the purposes of trade or commerce that does not comply with the prescribed food labelling requirements. Subsection 137C(4) provides that it is a defence if the person proves that their possession or control of the food was not for the purpose of supplying the food. New subsection 137C(3) therefore places a legal burden of proof on the defendant in respect of the existence (or non-existence) of the facts set out in ss 137C(4). Proposed subsection 9(1B) in item 18 of the bills places an evidential burden on defendants with regard to

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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an offence in subsection 9(1A) of the Imported Food Control Act 1992. The offence carries a penalty of 10 years imprisonment.

1.21 Article 14(2) of (ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

1.22 The protections in article 14(2) of the ICCPR are applicable in criminal proceedings. However, the approach under international and comparative human rights law has been to look at the substance and the effect of the proceedings, rather than their label. Accordingly, it is possible for a civil penalty regime which subjects a person to a high penalty and is intended to be punitive or deterrent in nature to constitute a 'criminal charge' for the purposes of the presumption of innocence in article 14(2) of ICCPR.

1.23 Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. An offence provision which requires the defendant to carry an evidential or legal burden of proof with regard to the existence of some fact will engage the presumption of innocence because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt.

1.24 However, reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, the reverse burden must pursue a legitimate aim and be reasonable, necessary and proportionate to that aim. Human rights case-law has established that relevant factors to consider when determining if a reverse burden provision is justified include whether:

" the penalties are at the lower end of the scale;

" the offences arise in a regulatory context where participants may be expected to know their duties and obligations; and

" the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

1.25 While provisions which impose only an evidential burden are more likely to be considered compatible with the presumption of innocence, they will still require to be properly justified, particularly where the burden relates to an essential element of the offence.

1.26 The statement does not address whether the reverse burden provisions in the bills are compatible with the presumption of innocence in article 14(2) of ICCPR.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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1.27 The committee proposes to write to Senator Milne and Mr Bandt to request a justification for the reverse burden provisions in the bills before forming a view whether they are compatible with the presumption of innocence in article 14(2) of ICCPR.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Page 10

Higher Education Support Amendment (Streamlining and Other Measures) Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Industry , Innovation, Science∑, Research and Tertiary Education

Committee view

1.28 The committee seeks further information from the Minister for Industry, Innovation, Science, Research and Tertiary Education before forming a view on whether the bill is compatible with human rights.

Purpose of the bill

1.29 This bill is intended to strengthen the integrity and quality framework underpinning the Higher Education Loan Program (HELP) schemes, improve information sharing and transparency with the national education regulators, improve arrangements for the early identification of low quality providers, and enable the government to better manage risk to students and public monies. The amendments give effect to the government's commitments under the 2012 COAG National Partnership Agreement on Skills Reform.

1.30 Schedule 2 of the bill provides that a notice revoking a higher education or vocational education training (VET) provider takes effect on the day the notice is registered on the Federal Register of Legislative Instruments. The statement of compatibility explains that the purpose of the amendments is:

to ensure that notices of revocation take effect in a more timely and effective manner to prevent an organisation whose approval has been revoked, from continuing to offer FEE-HELP or VET FEE-HELP to students during the period between the Minister's decision to revoke a provider's approval and the time when the notice of revocation of approval takes effect. This will minimise risks to students.'

Compatibility with human rights

Right to education

1.31 The statement of compatibility states that the bill engages and promotes the right to education in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) because it will lead to increased numbers of students being able to access FEE-HELP loans to participate in tertiary education.

1.32 The statement acknowledges that the bill strengthens the Minister's ability to revoke or suspend a provider's FEE-HELP approval but it is suggested this 'does

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act2011 is invited to do so.

Page 11

not infringe on the right to education as organisations will still be able to offer education and training without FEE-HELP assistance'.

1.33 The statement does not explain what, if any, impact these measures may have on students on FEE-HELP or VET FEE-HELP assistance, in circumstances where the organisation providing their education or training has its approval revoked with immediate effect.

Right to privacy

1.34 The bill will also allow the Minister to seek information from education regulators when making a decision to approve, revoke or suspend a provider's approval under HELP schemes.

1.35 The right to privacy is protected in article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Collecting, using, storing, disclosing or publishing personal information amounts to an interference with privacy. In order for the interference not to be 'arbitrary', the interference must be for a legitimate objective and be reasonable, necessary and proportionate to that

objective.

1.36 The statement states that the information-sharing provisions in the bill engage and promote the right to privacy in article 17 of ICCPR because 'any personal information which is collected is protected in a way that is consistent with the Privacy Act 1988'.

1.37 The committee notes that without further information, the assertion that the provisions are consistent with the Privacy Act 1988 is not sufficient to demonstrate that the measures are fully consistent with the right to privacy in article 17 of ICCPR.

1.38 The committee proposes to seek further clarification from the Minister Industry, Innovation, Science, Research and Tertiary Education on the following matters before forming a view on whether the bill is compatible with human rights:

" The impact, if any, these measures may have on students on FEE-HELP or VET FEE-HELP assistance, in circumstances where the organisation providing their education or training has its approval revoked with immediate effect.

" Information on the relevant safeguards for the storage, handling and disposal of any personal information that may be collected through the information-sharing provisions in the bill. The committee also queries the claim in the statement of compatibility that the bill promotes the right to privacy, when the measures in question would appear to limit the right instead.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Law Enforcement Integrity Legislation Amendment Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Home Affairs and Justice

Committee view

1.39 The committee seeks further clarification from the Minister for Home Affairs and Justice on a range of issues in the bill to assist its consideration of the compatibility of the bill with human rights.

1.40 The committee intends to draw its preliminary comments on the bill to the attention of the Senate Legal and Constitutional Affairs Legislation Committee, which is currently undertaking an inquiry into the bill.

Purpose of the bill

1.41 This bill introduces a range of measures which seek to prevent corruption in Commonwealth law enforcement agencies, and to enhance the response of law enforcement agencies to cases of suspected corruption.

1.42 The measures are given effect through amendments to the Crimes Act 1914, the Australian Crime Commission Act 2002, the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, the Customs (Administration) Act 1985, and the Law Enforcement Integrity Commissioner Act 2006.

1.43 The key measures contained in the bill are:

" the introduction of targeted integrity testing for the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Customs and Border Protection Service (schedule 1, part 1) and associated investigative tools, including provision for new surveillance device warrants under the Surveillance Devices Act 2004 and using intercepted information accessed under the Telecommunications (Interception and Access) Act 1979 for integrity operations (schedule 1, part 3);

" extension of the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) to cover AUSTRAC, CrimTrac, and prescribed staff members in the Department of Agriculture, Fisheries and Forestry (DAFF) (schedule 1, part 2); and

" the introduction of measures to bring the Australian Custom and Border Protection Service's powers to act against corruption and misconduct into

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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line with those of the Australian Federal Police and the Australian Crime Commission (schedule 2).

1.44 The committee notes that this is a complex bill that raises a range of human rights issues, in part because of its interaction with a variety of other law enforcement legislation. The committee has outlined below some of the initial issues that it has identified with regard to the bill that would benefit from further

clarification from the Minister for Home Affairs and Justice. These have been highlighted in bold.

Compatibility with human rights

Integrity testing regime

1.45 The amendments relating to integrity testing in schedule 1 of the bill is intended to give effect to a 2011 report by the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, which recommended that integrity testing be introduced for the AFP, ACC and the Australian Customs and

Border Protection Service. The committee recommended that testing should be targeted at officers suspected of corrupt conduct and that the heads of these agencies, and the Integrity Commissioner, should be able to authorise testing. The committee also recommended that relevant legislation be amended, if necessary, to allow agencies to use covert policing powers when conducting integrity testing.

1.46 Integrity testing, while clearly seeking to achieve legitimate objectives, raises a number of human rights issues. The overall compatibility of the proposed regime will generally be dependent on whether the legislation provides for adequate safeguards to ensure that the relevant powers are appropriately targeted and

circumscribed, and that the implementation of the scheme remains reasonable, necessary and proportionate to the objective of preventing corruption in law enforcement agencies.

Independent monitoring

1.47 The provision of adequate independent monitoring mechanisms is likely to be a key safeguard that goes towards the overall compatibility of such a scheme. The Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity also noted the importance of safeguards to ensure that integrity testing is used in an appropriate manner and to that end recommended, among other things, that provision is made for oversight by the Commonwealth Ombudsman.

1.48 While the bill requires relevant agencies report to the Minister each year on the number and nature of integrity tests undertaken and to notify the Integrity

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Commissioner when an integrity test is authorised, no explicit provision appears to be made for oversight by the Commonwealth Ombudsman.

1.49 The committee proposes to write to the Minister for Home Affairs and Justice to request clarification for the lack of explicit provision in the bill for independent oversight by the Ombudsman.

Right to a fair trial

1.50 The bill will amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to allow existing telecommunications information and existing stored communications accessed under the TIA Act to be communicated and used for integrity testing purposes by AFP, ACC and ACLEI.

1.51 The use of intercept evidence in criminal proceedings potentially impacts on the defendant's right to a fair trial in article 14 of International Covenant on Civil and Political Rights (ICCPR). While there is no inherent human rights objection to the use of intercept evidence in criminal trials, overall compatibility with the right to a fair trial will depend on whether a fair balance is struck between protecting the public

interest in not disclosing sensitive information and the defendant's right to the disclosure of evidence that might assist their defence.

1.52 The statement of compatibility does not address the issue of whether the use of intercept evidence in integrity testing operations is compatible with the right to a fair trial in article 14 of ICCPR. The statement also does not clarify what, if any, interaction an integrity testing scheme may have with entrapment laws. Entrapment, and the use of evidence obtained by entrapment, may jeopardise the fairness of a trial if the offence for which the defendant is prosecuted has been incited or instigated by law enforcement officers.

1.53 The committee proposes to write to the Minister for Home Affairs and Justice to seek clarification on the following matters:

" Whether the use of intercept evidence in integrity testing operations is compatible with the right to a fair trial in article 14 of ICCPR.

" What, if any, interaction the proposed scheme would have with

entrapment laws.

Expansion of ACLEI jurisdiction

1.54 Part 2 of the bill expands the number of law enforcement agencies covered by ACLEI to include the AUSTRAC, CrimTrac, and prescribed officers of DAFF.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Right to privacy

1.55 The statement of compatibility states that these amendments engage the right to privacy in article 17 of ICCPR because the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) provides that employees of agencies under ACLEI's jurisdiction, or other individuals with information that is relevant to corruption within those agencies, can be required to provide information to ACLEI or to answer questions'.

1.56 The statement notes that:

The ability to require an individual to provide information or answer questions is limited to situations where it will be relevant to an investigation of a corruption issue or the conduct of a public inquiry into corruption. The LEIC Act also prescribes how information that is provided by individuals to ACLEI is able to be used and disclosed. Disclosure is generally only permitted for the purposes of investigating a corruption issue or other purposes connected with the exercise of the functions of the Integrity Commissioner.

1.57 The committee considers that this measure is unlikely to raise any concerns in relation to the right to privacy in article 17 of ICCPR.

Right against self-incrimination

1.58 Compulsory questioning engages the right against self-incrimination in article 14(3)(g) of ICCPR. The statement indicates that immunity is provided in the LEIC Act to restrict the use of answers given in response to compulsory questioning in subsequent criminal proceedings. However, the statement does not elaborate if this includes both a use and derivative use immunity. Abrogation of the right against self≠ incrimination is more likely to be considered permissible where it is accompanied by both a use and derivative use immunity.

1.59 The committee proposes to write to the Minister for Home Affairs and Justice to seek clarification on this issue.

Measures relating to Customs and Border Protection

1.60 Schedule 2 to the bill introduces a range of measures to increase the power of the CEO of Customs to detect and deal with corruption within the Australian Customs and Border Protection Service.

Page 15

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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(i) Drug and alcohol screening tests

1.61 Item 21 of Schedule 2 creates powers to require Customs workers to undergo alcohol screening tests, breath tests or prohibited drug tests in certain contexts. The new powers enable an authorised officer to:

" direct a worker performing their duties to undergo an alcohol screening test if the authorised officer reasonably suspects the worker is under the influence of alcohol (section 16B);

" give written direction to a worker performing their duties to undergo an alcohol screening or breath test or provide a body sample for a prohibited drug test, (section 16C); or

" give written direction to a worker to undergo testing in certain situations involving the death or serious injury of another person, including in circumstances where the worker is no longer performing their duties (section 16D). The written direction must either be given as soon as practicable after the incident or whilst the worker is in hospital for examination or treatment

because of the incident.

1.62 A 'prohibited drug' is defined as a narcotic substance within the meaning of the Customs Act 1901 (ie border controlled drugs) or any drug specified by the Customs and Border Protection CEO in a legislative instrument (section 16H).

1.63 Details of the testing regime are not contained in the bill but will be provided in regulations to be made under new section 16F. The committee notes that it will be difficult to reach a definitive view on compatibility of these measures because the details about the testing regime are not on the face of the bill but will

be contained in regulations.

Right to privacy

1.64 Mandatory drug and alcohol testing regimes engage the right to privacy in article 17 of ICCPR.

1.65 The statement of compatibility provides the following explanation for concluding that 'the interferences with the right to privacy ... are proportionate to the need to protect against corruption in law enforcement':

[These measures will] increase the collection and use of personal information within Customs and Border Protection's workplace, such as: results from mandatory drug and alcohol testing, mandatory disclosure of persona! information, the compulsory physical intervention of a person for testing purposes. These measures do not limit the obligations of Customs

and Border Protection under the Privacy Act 1988 and the Information Privacy Principles in general. Customs and Border Protection will continue

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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to adhere to the safeguards aligned to the eleven Information Privacy Principles and thereby meet the requirements of the ICCPR to ensure no unlawful interference with privacy, honour or reputation occurs.

1.66 The committee observes that the statement's analysis of the privacy impacts of these measures is inadequate as it appears to only address the information privacy aspects of the measures.

1.67 The right to privacy in article 17 of ICCPR extends to protecting a person's bodily integrity against compulsory procedures, such as drug testing. Human rights law does not prohibit mandatory testing but it will be necessary to show that the specific measures adopted are reasonable, necessary and proportionate to the

legitimate objective of protecting against corruption as well as maintaining safety in a high-risk work environment.

1.68 Given the potentially invasive nature of drug testing, the committee proposes to ask the Minister for Home Affairs for an assessment of the compatibility of these powers with the right to privacy in article 17 of ICCPR. The assessment should include an explanation for:

" The lack of safeguards in the bill for the conduct of testing, including the absence of controls for the types of tests that could be ordered, given that tests could reveal a range of information about the person which is unrelated to the purposes of screening.

" The absence of a threshold or trigger for exercising the power in section 16C. By contrast, the power in section 16B requires 'reasonable suspicion' before it can be exercised, and the power in section 16D is triggered by the occurrence of particular incidents.

" The potential for the definition of a 'prohibited drug' to be overly broad and in particular the absence of any specific criteria that the CEO must consider before specifying a drug as a *prohibited drug' under section 16H.

" Further detail on the safeguards that are applicable with regard to the use and disclosure of information collected. Adherence to the Privacy Act 1988 is not, in and of itself, a guarantee that the measures are fully consistent with the right to privacy in article 17 of ICCPR.

The committee also seeks the Minister's views on whether these measures could lead to discrimination on the basis of an actual or perceived disability, contrary to article 26 of ICCPR and article 27 of the Convention on the Rights of Persons with Disabilities.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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(ii) Declaration of 'serious misconduct'

1.69 The CEO has the power to dismiss employees for serious misconduct or corruption under section 29 of the Public Service Act 1999. The Fair Work Act 2009 currently applies to all dismissals of Customs staff employed under the Public Service Act and provides protection where the dismissal was harsh, unjust or unreasonable.

1.70 The explanatory memorandum states that 'the application of the Fair Work Act can impact on the ability of the CEO to quickly and decisively remove a person from the organisation. For example, review of the dismissal under the Fair Work Act may result in the person having to be reinstated'.

1.71 To address these concerns, new subsection 15A(2) gives the CEO the power to issue a written declaration if the CEO reasonably believes that the dismissed worker's conduct amounted to serious misconduct and is likely to have a damaging effect on the professional self-respect, morale or reputation of the service

(subsection 15A(1)). The effect of a declaration is to preclude review of the termination of employment for unfair dismissal under the Fair Work Act 2009.

1.72 Item 14 of the bill defines 'serious misconduct' as 'corruption, a serious abuse of power, or a serious dereliction of duty; or any other seriously reprehensible act or behaviour by the Customs worker, whether or not acting, or purporting to act, in the course of his or her duties as such a Customs worker'.

1.73 The statement of compatibility provides the following appraisal of the human rights impact of these provisions:

While Article 2(3)(a) of the ICCPR is based on the premise that any person, who has their rights or freedoms violated, shall have an effective remedy, Article 2(3)(b) qualifies this right more prescriptively. Article 2(3)(b) states that the right shall be '...determined by competent judicial, administrative or legislative authorities, or by any competent authority provided for by the legal system of the state and to develop the possibilities of judicial remedy.' This proposed Bill does not restrict the right of a Customs and Border Protection worker seeking redress through the Administrative Decisions (Judicial Review) Act 1977. The CEO's written declaration of serious misconduct will be a reviewable decision under this Act. Customs and Border Protection workers are therefore provided an avenue to develop the possibilities of judicial remedy to their dismissal.

Right to work and right to a fair hearing

1.74 The committee considers that these provisions raise significant rights concerns, which are inadequately addressed in the statement of compatibility. Key rights engaged by these measures include the right to work in article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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right to a fair hearing in article 14(1) of ICCPR. Neither of these rights is addressed in the statement.

1.75 Article 6 of ICESCR includes a guarantee not to be unfairly deprived of work and to have due process protections in relation to termination of employment. Article 14(1) of ICCPR also provides for a general fair procedures guarantee by

protecting the right to a fair and public hearing by an independent and impartial tribunal established by law in the determination of rights and obligations. Employment decisions have been found to come within the scope of article 14(1) of ICCPR.

1.76 The committee proposes to ask the Minister for Home Affairs and Justice to provide an assessment of the compatibility of these provisions with the right to work in article 6 of ICESCR and the right to a fair hearing in article 14(1) of ICCPR. The assessment should address whether the measures seek to achieve a legitimate

objective and have a reasonable relationship of proportionality between the means employed and the objective sought to be realised; and include information on the following matters:

" Whether a dismissal would be subject to any alternative review on its merits; and if not, the reasons for considering that judicial review would be sufficient to remedy any flaws in the original decision-making process.

" Whether the requirement to provide the worker with a copy of the

declaration under s 15A(6) would include information on the grounds for the declaration; and if not, what impact this might have on the effectiveness of judicial review.

" Whether the measures will be subject to any independent oversight, other than the requirement to report to the Minister under sl5A(7).

(iii) Orders by CEO of Customs

1.77 New section 4B gives the CEO the power to issue orders requiring workers to report serious misconduct, corrupt conduct or criminal activity engaged in or involving another worker where such conduct affects or is likely to affect the operations and responsibilities of Customs.

1.78 New section 4C provides that workers are not excused from providing information required by a CEO's order by reason that the provision of that information will incriminate that worker or expose them to a penalty.

1.79 Information given in response to a CEO's order is not admissible as evidence against the worker in any proceedings (s 4C(2)).

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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l.SO The provision of use immunity in subsection 4C(2) is subject to section 16G, which sets out the circumstances in which results from an alcohol or drug test or other information, answers or documents relevant to conducting the tests can be used. Essentially, such information is not admissible as evidence against the worker except in dismissal proceedings, proceedings under the Safety Rehabilitation and Compensation Act 1988 or proceedings in tort instituted by the worker against the Commonwealth (section 16G).

Right against self-incrimination

1.81 Article 14(3)(g) of the ICCPR protects the right to be free from self≠ incrimination by providing that a person may not be compelled to testify against him or herself or to confess guilt. The right to be free from self-incrimination may be subject to permissible limitations, provided that the limitations are for a legitimate objective, and are reasonable, necessary and proportionate to that objective.

1.82 Generally, an abrogation of the right against self-incrimination is more likely to be considered permissible, where it is accompanied by both a use and derivative use immunity. Subsection 4C(2) provides only for a use immunity and does not extend to a derivate use immunity.

1.83 The statement of compatibility does not address the lack of provision for a derivative use immunity but the explanatory memorandum provides the following brief explanation:

This immunity does not extend to a derivative use immunity in these circumstances because the object of CEO's Orders referred to in subsection 4B(2) is to promote the high integrity of the Customs and Border Protection workforce by exposing and addressing conduct that does not meet this standard. This objective cannot be fully realised unless derivative use can be made of the information disclosed in compliance with the CEO's Orders.

1.84 The committee proposes to write to the Minister for Home Affairs and Justice to seek further information on the following matters before forming a view on the compatibility of these provisions with the right against self-incrimination in article 14(3)(g) of ICCPR:

" Examples of the types of situations contemplated where the objective of the measures might be frustrated by the inclusion of a derivative use immunity.

" Whether consideration has been given to applying a narrower abrogation of the right against self-incrimination, for example, by retaining a derivative use immunity for evidence that could not have been obtained without compelling the person to speak, but allowing other compelled

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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evidence (such as results of drug tests and documents) to remain admissible.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Migration Amendment (Reform of Employer Sanctions) Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Immigration and Citizenship

Committee view

1.85 The committee seeks further information from the Minister for Immigration and Citizenship before forming a view on the compatibility of these provisions with article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR).

1.86 The committee also draws the Minister's attention to the committee's expectation that statements should read as 'stand-alone' documents.

Purpose of the bill

1.87 This bill amends the Migration Act 1958 to:

" amend the criminal offences and create a new non-fault civil penalty regime for persons who allow an unlawful non-citizen to work, refer an unlawful person to a third person for work, allow a lawful non-citizen to work in breach of a work-related visa condition or refer a lawful non-citizen to a third

person for work in breach of a work-related visa condition;

" allow for the issue of infringement notices in relation to alleged breaches of civil penalty provisions;

" capture a wider variety of work relationships within the definition of 'allow to work';

" extend liability for contraventions to a wider range of persons and entities; and

" introduce investigative powers in relation to work-related offences, including search and seizure powers.

1.88 The statement of compatibility identifies that the bill engages several human rights, including the right to privacy in article 17 of ICCPR, the right against self≠ incrimination in article 14(3)(g) of ICCPR, and the right to be free from slavery and forced labour in article 8 of ICCPR (in the sense that the amendments seek to act as a disincentive to employers exploiting individuals without permission to work in Australia).

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Compatibility with human rights

Right against self-incrimination

1.89 New subsection 487C(1) abrogates the right against self-incrimination as it provides that a person is not excused from giving information under new section 487B by reason that compliance would be incriminating. However, provision is made for use and derivate use immunities that restrict any direct or indirect use of that

information in any subsequent criminal or civil proceedings, except where the proceedings relate to a civil penalty order for a contravention of a work-related provision (subsection 487C(2)).

1.90 Article 14(3)(g) of the ICCPR protects the right to be free from self≠ incrimination by providing that a person may not be compelled to testify against him or herself or to confess guilt. The right to be free from self-incrimination may be subject to permissible limitations, provided that the limitations are for a legitimate objective, and are reasonable, necessary and proportionate to that objective. Abrogation of the privilege against self-incrimination is more likely to be permissible where protections relating to the use of the information are included, such as a 'use

immunity', which prohibits use of the information against the person in subsequent criminal proceedings; or a 'derivative use immunity', which additionally prevents the information being used to gather other evidence against the person.

1.91 The right against self-incrimination in article 14(3)(g) applies to individuals who are charged with a criminal offence. However, the approach under international and comparative human rights law is to look at the substance and the effect of the proceedings, rather than their label. Therefore, it is possible for a civil regime which subjects a person to a high penalty and is intended to be punitive or deterrent in

nature to constitute a 'criminal charge' for the purposes of this right.

1.92 The statement of compatibility acknowledges that subsection 487C(2) is a 'departure from standard practice' but argues that abrogating the privilege for work- related civil penalty proceedings is necessary for the effective enforcement of the employer sanctions civil penalty provisions. The statement also indicates that the limitation on the right to be free from self-incrimination is proportionate as it is only relates to work-related civil penalty proceedings, and use and derivate use immunities will be available in relation to all other civil penalty proceedings.

1.93 The committee proposes to seek further information from the Minister for Immigration and Citizenship with regard to the types of situations contemplated where the objective of the scheme would be frustrated by the inclusion of use and derivative use immunities, before forming a view on the compatibility of these provisions with article 14(3)(g) of ICCPRR.

______________ __ _____ _________________ ______________________________ ______ Page 23

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Presumption of innocence

1.94 The bill contains several strict liability and reverse burden offences which engage the presumption of innocence in article 14(2) of ICCPR. These offences are not addressed in the statement of compatibility. Detailed justification for these offences is however provided in the explanatory memorandum to the bill.

1.95 The committee considers that these offences are unlikely to raise any issues of incompatibility with article 14(2) of ICCPR as they involve low penalties and would appear to relate to matters that are readily accessible and within the defendant's knowledge.

1.96 However, the committee proposes to write to the Minister for Immigration and Citizenship in an advisory capacity to indicate the committee's expectation for statements to read as stand-alone documents. Offences of this nature should therefore be appropriately addressed and justified in the statement. At the very

least, the statement should refer to the relevant discussion in the explanatory memorandum.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012

Superannuation Auditor Registration Imposition Bill 2012

Introduced into the House of Representatives on 19 September2012 Portfolio: Treasury

Committee view

1.97 The committee seeks further information from the Treasurer with regard to various provisions in the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 before forming a view on the compatibility of the bill with human rights.

Purpose of the bill

1.98 These bills amend various superannuation laws to implement a range of changes to Australia's superannuation laws.

1.99 These two bills were introduced together and share a single explanatory memorandum. However, the human rights impact of each bill is considered separately and would appear to meet the committee's expectations for statements to read as 'stand-alone' documents.

Compatibility with human rights

Schedule 1 to Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012

1.100 Schedule 1 to Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 amends the Income Tax Assessment Act 1997 and Tax Laws Amendment (2009 Measures No. 6) Act 2010 to reinstate the temporary loss relief for merging superannuation funds with some modifications.

1.101 The statement of compatibility states that this schedule does not raise any human rights issues.

1.102 The committee considers that schedule 1 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 does not appear to raise any human rights concerns.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Schedule 2 to Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 and the Superannuation Auditor Registration Imposition Bill 2012

1.103 Schedule 2 to the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 and the Superannuation Auditor Registration Imposition Bill 2012 implement the government's reforms relating to auditors of self-managed superannuation funds (SMSFs) as part of Stronger Super. These amendments:

" introduce a registration regime for SMSF auditors;

" provide for the Australian Securities and Investments Commission (ASIC), as the registration body for SMSF auditors, to be responsible for setting competency standards and taking enforcement action against auditors who have not met their obligations; and

" provide powers to the Australian Taxation Office (ATO) to monitor auditors' compliance with relevant standards and refer any non-compliant auditors to ASIC for enforcement action consideration.

1.104 The statement of compatibility states that this schedule does not raise any human rights issues.

1.105 The committee notes that the SMSF auditor registration scheme in schedule 2 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 is likely to engage several human rights, none of which are addressed in the statement of compatibility.

" Right to privacy: The scheme grants ASIC and ATO new monitoring, investigation and information-sharing powers to monitor approved SMSF auditors and audits of SMSFs. These powers are likely to engage the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR). The statement of compatibility does not address the issue of whether the relevant powers are reasonable, necessary and proportionate to meet the legitimate objective of regulating SMSFs.

" Right to a fair hearing : The scheme enables ASIC to cancel, disqualify or suspend a person's registration in certain circumstances. These powers are likely to engage article 14(1) of ICCPR, which provides a general fair procedures guarantee by protecting the right to a fair hearing by an independent and impartial tribunal in the determination of rights and obligations. The statement of compatibility does not address the issue of whether these powers will be exercised consistently with article 14(1) of ICCPR, for example by providing that the relevant decisions will be subject to appropriate review.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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" Right to non-discrimination: The scheme sets out who may apply for registration as an approved SMSF auditor and the requirements a person must meet before ASIC grants an application for registration as an approved SMSF auditor. Among other things, ASIC must be satisfied that the person is a 'fit and proper person' to be an approved SMSF auditor. The term 'fit and proper person' is not defined in the bill or the parent Superannuation Industry (Supervision) Act 1993. The explanatory memorandum indicates that a broad range of factors may be taken into account in making such an assessment, including whether the person has been convicted or has legal proceedings pending for any criminal offences or other misconduct in any country. A proposal to provide for differential treatment on the basis of, for example, a criminal record is likely to engage the right to equality and non≠ discrimination in article 26 of ICCPR, The statement of compatibility does not address the issue of whether any differential treatment resulting from the 'fit and proper person' test is consistent with article 26 of ICCPR on the

basis that it is reasonable, necessary and proportionate to achieving a legitimate aim.

Schedule 3 to Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012

1.106 Schedule 3 to the Superannuation Laws Amendment (Capita! Gains Tax Relief and Other Efficiency Measures) Bill 2012 amends the Taxation Administration Act 1953 to expand the information required to be reported to the Commissioner of Taxation. Under the revised reporting obligations, superannuation providers will be

required to provide statements for all members who held an interest in the superannuation plan at any time during a reporting period, not just those for whom contributions are received.

1.107 The statement of compatibility states that this schedule does not raise any human rights issues.

Right to privacy

1.108 The committee notes that the expanded reporting requirements in schedule 3 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 are likely to engage article 17 of ICCPR, which provides that no one shall be subjected to arbitrary or unlawful interference with their

privacy. Collecting, using, storing, disclosing or publishing personal information amounts to an interference with privacy. The statement of compatibility does not address the issue of whether the interference is not 'arbitrary', that is, whether the interference is for a legitimate objective and is reasonable, necessary and proportionate to that objective.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Schedule 4 to Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012

1.109 Schedule 4 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 amends the Superannuation Industry (Supervision) Act 1993 (SIS Act) and the Retirement Savings Accounts Act 1997 (RSA Act) to improve the information quality in the superannuation system and ensure effective e-commerce in superannuation.

Presumption of innocence

1.110 The statement of compatibility identifies that the strict liability offence in section 34Z of the SIS Act and section 45R of the RSA Act engages the presumption of innocence, which is protected in article 14(2) of ICCPR. The offence applies where a person fails to provide prescribed information to the Commissioner in accordance with the regulations and carries a penalty of 25 penalty units. The explanatory memorandum justifies the application of strict liability on the basis that:

" it would be difficult to prove that prescribed entities did not intend to comply with the requirement to provide the information, thereby making the provisions difficult to enforce;

" it is vital for prescribed entities to give this information to the Commissioner in a timely manner so that there is a complete and accurate register for other participants; and

" it is a reasonable expectation that prescribed entities will have this information readily available as it will be a core operational requirement for the receipt of data and payments for contributions and roll-overs.

1.111 The committee considers that these strict liability offences do not appear to raise any concerns with regard to the presumption of innocence in article 14(2) of ICCPR.

Right against self-incrimination

1.112 The SIS Act and the RSA Act provide for a range of monitoring powers that may be exercised by the regulator in relation to superannuation entities, including the power to compel information. These amendments extend the monitoring powers to also cover contributing employers, ie employers who make superannuation

contributions for an employee to a superannuation entity or RSA provider. However, the right against self-incrimination, which is protected in article 14(3)(g) of ICCPR, will be retained for contributing employers (Schedule 4, item 18, subsection 287(5) of the SIS Act and item 41, subsection 117(5) of the RSA Act).

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act2011 is invited to do so.

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1.113 The statement of compatibility states that 'item 15 [sic] ensures that for employers the privilege against self-incrimination applies in relation to the [relevant] monitoring provisions'.

1.114 The committee considers that these provisions do not appear to raise any concerns with regard to the right against self-incrimination in article 14(3)(g) of ICCPR.

Right to privacy

1.115 The amendments will enable the Commissioner for Taxation to provide a tax file number (TFN) that has been quoted by a member to a superannuation fund to other superannuation funds the member holds accounts with and who do not hold a

record of the member's TFN. They also enable employers and trustees of eligible superannuation entities to check a member's TFN with the Commissioner for Taxation for the purpose of ensuring accurate information is recorded within the

superannuation system.

1.116 These provisions engage the right to privacy in article 17 of ICCPR as the relevant information that may be shared includes personal details such as a person's full name, date of birth and address.

1.117 The statement of compatibility indicates that the purpose of linking TFNs to member accounts is to reduce the likelihood for accounts to become lost or unclaimed.

1.118 The statement notes these provisions only apply when a person has quoted their TFN to their trustee or employer. In addition, a person retains the right not to quote their TFN and may require a trustee to not record their TFN.

1.119 The statement also states that the handling of TFN information is regulated by the Tax File Number Guidelines 2011, issued under section 17 of the Privacy Act 1988 and that 'there are strong protections around the use of TFN's and penalties for

inappropriate use in existing legislation'.

1.120 The committee considers that these provisions are unlikely to raise issues of incompatibility with the right to privacy in article 17 of ICCPR. Any interference with privacy would appear to be necessary to achieve the stated objective of

reducing the number of lost and unclaimed superannuation accounts, which can be considered to be a legitimate objective. Further, the provisions appear to be drafted with sufficient precision and contain appropriate safeguards to ensure that the degree of interference is proportionate to that objective. In particular, a person

retains the right to opt-out and the measures are subject to the TFN handling requirements under the Privacy Act 1988, which are legally binding and would

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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appear to provide appropriate protection for the collection, storage, use, disclosure, security and disposal of individuals' TFN information.

1.121 The committee proposes write to the Treasurer to seek clarification on the following matters before forming a view on whether these bills are compatible with human rights:

" Whether the monitoring, investigation and information-sharing powers in schedule 2 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 and the expanded reporting requirements in schedule 3 of the bill are considered to be compatible with the right to privacy in article 17 of ICCPR.

" Whether the powers to cancel, disqualify or suspend a person's registration as a SMSF auditor in schedule 2 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 are considered to be compatible with the right to a fair hearing in article 14(1) of ICCPR.

" Whether any differential treatment resulting from the 'fit and proper person' test in schedule 2 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 is considered to be compatible with the right to non-discrimination in article 26 of ICCPR.

1.122 The committee also draws the Treasurer's attention to the committee's expectation that any limitations on rights should be justified in the statement against the following three criteria: whether the limitation is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and the objective; and whether the limitation is proportionate to that objective.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Tax Laws Amendment (2012 Measures No. 5) Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Treasury

Committee view

1.123 The committee seeks further information from the Treasurer with regard to several measures in this bill before forming a view on the compatibility of the bill with human rights.

Purpose of the bill

1.124 This bill:

" amends the definition of an 'eligible no-till seeder' in the Income Tax Assessment Act 1997 to ensure that it can comprise just the tool, or the combination of the cart and the tool (schedule 1);

" amends the Income Tax Assessment Act 1997 to phase out the mature age worker tax offset from 1 July 2012 for taxpayers born on or after 1 July 1957 (schedule 2);

" amends the Excise Act 1901 and the Excise Tariff Act 1921 to provide a robust and more sustainable compliance regime for liquid petroleum gas, liquefied natural gas and compressed natural gas (schedule 3);

" amends the Excise Act 1901 to clarify when the Commissioner of Taxation, may, by legislative instrument, specify circumstances when the creation of certain fuel blends is not considered to be excise manufacture (schedule 4);

" amends the Income Tax Assessment Act 1997 to update the list of deductible gift recipients (DGRs) by adding The Diamond Jubilee Trust Australia as a DGR (schedule 5); and

" amends the A New Tax System (Wine Equalisation Tax) Act 1999 to ensure that a wine producer will not be entitled to the wine equalisation tax producer rebate on other wine they use in manufacture, except where the producer of the other wine (or supplier) notifies the subsequent producer (schedule 6).

Compatibility with human rights

1.125 The statement of compatibility states that schedules 1, 4 and 5 of the bill do not raise any human rights issues. The committee considers that these schedules are unlikely to raise any human rights concerns.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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Presumption of innocence

1.126 Schedules 3 and 6 of the bill create strict liability offences in relation to keeping, retaining and producing records ({schedule 3, item 14, section 77LA) and where a person gives a notice that is false or misleading (schedule 6, item 2, subsection 19-28(1)). The statement identifies that these offences engage the presumption of innocence in article 14(2) of the International Covenant on Civil and

Political Rights (ICCPR). It explains that these offences are justifiable as it is reasonable to expect individuals who participate in a regulated activity to know their duties and obligations; the reverse burden relates to matters which a within the defendant's own knowledge and to which they have ready access; and the penalty falls on the lower end of the scale. The committee considers that these strict liability offences are unlikely to raise any issues of incompatibility with the presumption of innocence in article 14(2) of ICCPR.

Right to privacy

1.127 The committee notes that schedule 3 of the bill provides powers for ATO and Customs officers to enter premises occupied by persons who are required to keep records under the gaseous fuels record keeping provisions in the Excise Act 1901 for the purpose of monitoring compliance with the Act. The statement of compatibility does not address the issue of whether these provisions are compatible with the

right to privacy in article 17 of ICCPR.

Right to non-discrimination

1.128 Schedule 2 if the bill introduces a new eligibility requirement for the mature- age worker tax offset (MAWTO). From 1 July 2012, access to the MAWTO will be restricted to those who are already age eligible, that is, those born on or before 30 June 1957. In other words, individuals who were under the age of 55 at 30 June 2012

will be ineligible to access the tax offset once they turn (or turned) 55.

1.129 The explanatory memorandum indicates that the MAWTO is being phased out because it is a high cost method of facilitating mature age workforce participation. However, the MAWTO will be maintained for people who have already built the benefit into their household budgets.

1.130 The statement of compatibility states that these amendments do not engage any human rights.

1.131 The committee observes that these provisions draw an arguable distinction based on age because it restricts eligibility for the MAWTO on the basis of when an individual turns 55.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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1.132 Article 26 of ICCPR prohibits discrimination in law or in practice in any field regulated by public authorities. This means that when the Commonwealth legislates in any particular area, it must do so without discriminating. Article 26 of the ICCPR is a 'free-standing' bar on discrimination and is not limited to the ICCPR rights.

1.133 Discrimination means any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination, including age, and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of

all rights and freedoms.

1.134 A difference in treatment on prohibited grounds, however, will not be directly or indirectly discriminatory provided that it is (i) aimed at achieving a purpose which is legitimate; (ii) based on reasonable and objective criteria, and (iii)

proportionate to the aim to be achieved.

1.135 International human rights law has also generally acknowledged that personal characteristics are often legitimate factors that may be taken into account in formulating tax measures. Further, governments are usually accorded a degree of deference in tax matters, provided that there is a reasonable basis and a relationship of proportionality between the legitimate aim pursued and the means used and overall strike a fair balance between the interests of the community and the individual.

1.136 The committee proposes to write to the Treasurer to seek his advice on the following matters before forming a view on whether this bill is compatible with human rights:

" Whether any differential treatment resulting from the measures in schedule 2 of the bill is consistent with the right to non-discrimination in article 26 of ICCPR.

" Whether the monitoring powers in schedule 3 of the bill are compatible with the right to privacy in article 17 of ICCPR.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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The following bill was introduced without a statement of compatibility

Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Treasury

Committee view

1.137 The committee seeks an explanation from the Treasurer for the absence of a statement of compatibility for this bill.

1.138 To assist the committee to form a view on the compatibility of the bill with human rights, the committee also requests that the Treasurer provide the committee with a written assessment of the human rights implications of the bill.

Purpose of the bill

1.139 This bill is the third tranche of legislation implementing the government's MySuper and governance reforms as part of Stronger Super. The bill amends a range of related Acts to:

" ban entry fees and set criteria for the charging of other fees in superannuation, including rules for the charging of financial advice;

" require all superannuation funds to provide life and total permanent disability insurance to members (excluding defined benefit members) on an opt-out basis;

" enable the Australian Prudential Regulation Authority to collect information on a look-through basis;

" require the disclosure and publication of information in relation to superannuation funds;

" allow only funds that offer a MySuper product and exempt public sector superannuation schemes to be eligible as default funds in modern awards and enterprise agreements;

" allow exceptions from MySuper for members of defined benefit funds;

" require trustees to transfer certain existing balances of members to MySuper; and

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

" provide rules in relation to eligible rollover funds.

1.140 The committee notes that the bill enables the collection, disclosure and publication of information and is therefore likely to engage the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR). The bill also contains several reverse burden and strict liability offences which engage the

presumption of innocence in article 14(2) of ICCPR.

1.141 A statement of compatibility was not provided for this bill.

1.142 Before forming a view on whether the bill is compatible with human rights, the committee proposes to write to the Treasurer to seek his views on the compatibility of the bill with human rights and an explanation for the absence of a statement of compatibility.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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The committee has no comment on the following bills which are considered unlikely to raise any human rights concerns

Environment Protection and Biodiversity Conservation Amendment (Making Marine Parks Accountable) Bill 2012 [No 2]

Introduced into the House of Representatives on 17 September 2012 By: Mr George Christensen MP

1.143 This bill amends the Environment Protection and Biodiversity Conservation Act 1999 to:

" require the minister to establish an independent scientific reference panel and a stakeholder advisory group, and to commission an independent assessment of the social and economic impacts of a proposal to declare an area of sea or an area of land and sea as a Commonwealth reserve;

" require the minister to publish the reports of the scientific reference panel and the stakeholder advisory group; and

" provide that a Commonwealth reserve declaration be subject to disallowance.

1.144 The statement of compatibility states that the bill does not engage human rights.

1.145 The committee considers that the bill does not appear to raise any human rights concerns and the statement of compatibility is adequate.

Federal Circuit Court of Australia Legislation Amendment Bill 2012

Introduced into the House of Representatives on 20 September 2012 Portfolio: Attorney-General

1.146 This bill amends the Federal Magistrates Act 1999 and other legislation to rename the Federal Magistrates Court as the 'Federal Circuit Court of Australia', and

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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to change the title of Chief Federal Magistrate to 'Chief Judge' and Federal Magistrates to 'Judge'.

1.147 The bill does not alter the jurisdiction or the status of the Federal Magistrates Court and preserves existing arrangements in relation to personnel of the Federal Magistrates Court.

1.148 The statement of compatibility states that the bill does not engage human rights.

1.149 The committee considers that the bill does not appear to raise any human rights concerns and the statement of compatibility is adequate.

Health and Other Legislation Amendment Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Health and Aging

1.150 This bill makes amendments to the following legislation:

" The Food Standards Australia New Zealand Act 1991 to correct referencing inconsistencies. The amendments are minor and do not change the intent of the Act or alter any of the regulations.

" The Health Insurance Act 1973 to recognise in primary legislation the existing policy of permitting a trainee medical specialist to perform certain procedures in a private setting under the direct supervision of a specialist, with the procedure being deemed to have been performed by the supervising specialist and with the supervising specialist retaining the right to any bulk-billed Medicare benefit associated with the procedures. Since 1 July 2011 delegated legislation has enabled this policy.

" The Human Services (Medicare) Act 1973 to ensure that the term 'medicare' can be used by authorised persons without breaching the Act.

" The Industrial Chemicals (Notification and Assessment) Act 1989 to correct an inaccurate description of how chemicals are kept under the control of Customs during transhipment without affecting the intent of the exemption provision.

1.151 The statement of compatibility states that the bill does not engage any human rights.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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1.152 The committee has no substantive comments in relation to this bill as it does not appear to raise any human rights concerns and the statement of compatibility is adequate.

National Health Security Amendment Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Health and Aging

1.153 This bill amends the National Health Security Act 2007 to enhance controls for security sensitive biological agents (SSBAs) by providing for:

" a reporting regime that will apply to entities that handle SSBAs on a temporary basis to obviate the need for those entities to comply with the full reporting regime applicable to registered entities;

" the accommodation of registered facilities undertaking emergency maintenance by removing certain handling requirements or by imposing conditions to maintain security;

" the imposition of conditions on an entity handling SSBAs during a period of non-compliance with the SSBA Standards to maintain security of SSBAs; and

" consistent exemptions for exempt entities handling SSBAs or suspected SSBAs.

1.154 The statement of compatibility states that the general purpose of the bill is to reduce the regulatory burden of certain entities and to provide greater flexibility in the management of security risks when facilities that handle SSBAs are not complying with the SSBA Standards or when emergency maintenance is required. Other proposed measures relate to providing consistent exemptions for exempt entities and the reporting of negative confirmatory testing results for suspected SSBAs by registered entities who are initial testers.

Right to privacy

1.155 The statement identifies that the bill engages the right to privacy because certain provisions will require mandatory reporting to the Secretary of the Department of Health and Aging (DoHA). It notes that;

This is potentially a limitation on the right to privacy and reputation as this information will include the name and contact information of a person acting as a representative of the entity. This data is required to ensure that

the report is made by an authorised representative of the entity and so

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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that contact can be made to verify data. Contact information is held at an appropriate security level for the information obtained.

1.156 The right to privacy is protected in article 17 of International Covenant on Civil and Political Rights (ICCPR), which provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Collecting, using, storing, disclosing or publishing personal information amounts to an interference with

privacy. In order for the interference not to be 'arbitrary', the interference must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.

1.157 The statement concludes that the provisions are compatible with the right to privacy because:

It is considered these rights can be justifiably limited because of the national security context of handling SSBAs. In addition, the limitations imposed by the Bill are reasonable, necessary and proportionate to the level of risk posed by the type of SSBA.

1.158 The committee considers that the bill does not appear to raise any concerns with regard to the right to privacy in article 17 of ICCPR. The provisions relating to the requirement to provide information appear to be sufficiently circumscribed and the type of information required is likely to be necessary for the effective regulation

of SSBAs.

1.159 The committee considers that the bill does not appear to raise any human rights concerns and the statement of compatibility is adequate.

Personal Liability for Corporate Fault Reform Bill 2012

Introduced into the House of Representatives on 19 September 2012 Portfolio: Treasury

1.160 This bill makes amendments to personal criminal liability for corporate fault in various Commonwealth laws. The amendments will:

" remove personal criminal liability for corporate fault where such liability is not justified;

" remove the burden of proof on defendants to establish a defence to a charge;

" replace personal criminal liability for corporate fault with civil liability where a non-criminal penalty is appropriate; and

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act2011 is invited to do so.

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" where personal criminal liability is justified, to make clear the level of fault or involvement necessary to trigger such liability.

1.161 The bill implements the COAG Directors' Liability reform, which aims to harmonise the imposition of personal criminal liability for corporate fault across Australian jurisdictions. The reforms seek to address concerns over a trend in regulatory legislation to hold company officers criminally liable when their company

breaches a statutory requirement (derivative liability).

Presumption of innocence

1.162 The statement of compatibility states that the bill:

engages and promotes the right to the presumption of innocence in Article 12 [sic] of the International Covenant on Civil and Political Rights. The bill amends provisions to remove obligations on defendants to show an applicable defence. Removing this obligation promotes the presumption of innocence.

1.163 The committee considers that the bill does not appear to raise any human rights concerns and the statement of compatibility is adequate.

Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Bill 2012

Introduced into the House of Representatives on 20 September 2012 Portfolio: Sustainability, Environment , Water, Population and Communities

1.164 This bill amends the Water Act 2007 to allow the long-term average sustainable diversion limit (SDL) set by the Murray-Darling Basin Plan to be adjusted within clearly defined limits without invoking the formal Basin Plan amendment process.

1.165 The bill will allow an adjustment mechanism to be included in the Basin Plan in a way which will aid confidence and transparency in the operation of such a mechanism. The bill sets out the broad parameters for the mechanism, how it is intended to operate and introduces transparency in the process, requiring any use of the mechanism to be reported formally and publicly to the Parliament.

Right to an adequate standard of living and right to health

1.166 The statement of compatibility states that the bill engages and promotes the right to an adequate standard of living in article 11 of ICESCR and the right to health

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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in article 12 of ICESCR. Both these rights have been interpreted to encompass the right to water.

1.167 The committee considers that the bill does not appear to raise any human rights concerns and the statement of compatibility is adequate.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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The committee acknowledges the following response to comments made on bills in the Second Report of 2012

National Portrait Gallery of Australia Bill 2012

Introduced into the House of Representatives on 23 August 2012 Portfolio: Regional Australia, Local Government, Arts and Sport Response received: 19 September 2012

Committee view

1.168 The committee thanks the Minister for Regional Australia, Regional Development and Local Government and the Arts for confirming that the bill engages and promotes the right to take part in cultural life. The committee makes no further comment on this bill.

Purpose of the bill

1.169 This bill establishes the National Portrait Gallery of Australia (the Gallery) as a Commonwealth statutory authority subject to the Commonwealth Authorities and Companies Act 1997 (the CAC Act). As a consequence, the Gallery will cease to operate as a Branch within the Department of Regional Australia, Local Government, Arts and Sport.

1.170 The second reading speech notes that the establishment of the Gallery as a statutory authority is intended to support and deliver on the goals of the Government's National Cultural Policy.

1.171 The Minister's response can be found in Appendix 1.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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The committee acknowledges the following response to comments made on bills in the Third Report of 2012

Corporations Legislation Amendment (Derivative Transactions) Bill 2012

Introduced into the House of Representatives on 12 September 2012 Portfolio: Treasury Response received: 3 October 2012

Committee view

1.172 The committee thanks the Minister for Financial Services and Superannuation for his detailed and prompt response to the committee's request for clarification on the bill's engagement with the right against self-incrimination.

1.173 Having considered the response in conjunction with the statement of compatibility, the committee is satisfied that the bill does not appear to raise any concerns with regard to the right against self-incrimination in article 14(3)(g) of the

International Covenant on Civil and Political Rights (ICCPR).

1.174 The committee also notes that article 14(3)lg) of ICCPR is relevant to situations where the compelled information is subsequently used in criminal proceedings against the person or is used to gather other evidence against the person. The requirement to provide information on pain of a criminal penalty does not of itself infringe the right against self-incrimination in article 14(3)(g) of ICCPR.

Purpose of the bill

1.175 This bill amends various related Acts to provide a legislative framework to implement Australia's G-20 commitments in relation to over-the-counter (OTC) derivatives reforms to improve transparency and risk management in the OTC derivatives market. In particular, the bill:

" introduces new restrictions on the trading of over-the-counter derivatives (OTC derivatives);

" allows the Minister for Financial Services to prescribe classes of derivatives in relation to certain mandatory obligations. Subject to a class of derivatives being prescribed for one or more mandatory obligations (trade reporting, central clearing or on platform execution), the Australian Securities and

Investments Commission (ASIC) may make related derivatives transaction rules, with the Minister's consent; and

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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" introduces a licensing regime for trade repositories, a new type of financial market infrastructure.

1.176 The Minister's response can be found in Appendix 1.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Part 2

Legislative Instruments introduced 17-20 September 2012

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Consideration of legislative instruments

2.1 The committee has considered 34 legislative instruments introduced in the Parliament between 17 and 20 September 2012. The full list of instruments scrutinised by the committee can be found in Appendix 2.

2.2 Ten of these instruments do not appear to raise human rights concerns and are accompanied by statements of compatibility that the committee considers to be adequate.

2.3 21 instruments have been introduced with statements of compatibility that do not fully meet the committee's expectations. As the instruments in question do not raise human rights compatibility concerns, the committee has written to the

relevant Ministers in a purely advisory capacity providing guidance on the preparation of statements of compatibility. The committee hopes that this approach will assist in the preparation of future statements of compatibility that conform more completely to the committee's expectations.

2.4 Two instruments appear to have been introduced without a statement of compatibility. The committee has written to the relevant Minister to seek clarification for the absence of a statement.

2.5 The committee has identified one instrument for which it seeks further clarification from the relevant Minister before forming a view on the instrument's compatibility with human rights.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

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The committee has sought further information in relation to the following legislative instrument

Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2012

FRLI ID: F2012L01873 Introduced into the House of Representatives and the Senate on 17 September 2012 Portfolio: Employment and Workplace Relations

Committee view

2.6 The committee seeks further information from the Minister for Employment and Workplace Relations before forming a view on the regulation's compatibility with human rights.

Purpose of the bill

2.7 The Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 provides that certain periods of service undertaken by eligible employees and former eligible employees between 1 January 2000 and 31 December 2011 may be counted towards their long service leave accrual.

2.8 Schedule 5 of the Act sets out the timelines and dates by which certain administrative obligations are to be met in order to access these entitlements. This regulation will make the following changes to those timelines:

" extend the timeline for former eligible employees to provide information to the Coal Mining Industry (Service Leave Funding) Corporation for the purposes of having periods of service recognised as qualifying service;

" extend the timeline by which the Coal Mining Industry (Service Leave Funding) Corporation is required to notify former and current eligible employees about records that it has in relation to them; and

" grant more time for the Corporation to seek actuarial advice in relation to the sufficiency of the Coal Mining Industry (Long Service Leave) Fund.

2.9 It appears that a person's access to their long service leave entitlement may be delayed as a result of these changes.

2.10 The explanatory statement does not provide any justification for the delay in reporting requirements, other than that the Corporation is experiencing a high workload.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

_____________________________________________________________________________ Page 49

Compatibility with human rights

Rights in work

2.11 The statement of compatibility states that the instrument does not engage any human rights.

2.12 The secretariat notes that the instrument may engage article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7 of ICESCR protects the right to just and favourable conditions of work, including rest

and leisure and periodic holidays with pay.

2.13 Before forming a view as to whether the regulation is compatible with human rights, the committee proposes to write to the Minister for Employment and Workplace Relations to seek clarification on the regulation's compatibility with article 7 of ICESCR.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Page 50

The committee acknowledges the following responses to comments made on instruments in the Second

Report of 2012

Fair Work Amendment Regulation 2012 (No. 2)

FRLI ID: F2012L01708 Introduced into the House of Representatives and the Senate on 21 August 2012 Portfolio: Employment and Workplace Relations

Committee view

1.1 The committee thanks the Minister for Employment and Workplace Relations for confirming that the regulation engages and promotes the right to work and rights in work. The committee makes no further comment on this regulation.

Purpose of the instrument

2.1 The purpose of the instrument is to amend the Fair Work Regulations 2009 consequential on the commencement of the Coastal Trading (Revitalising Australian Shipping) Act 2012 and associated regulations and the Coastal Trading (Revitalising Australian Shipping) consequential Amendments and Transitional Provisions) Act

2012. The effect of the regulation is to ensure that the Fair Work Act 2009 continues to apply to certain ships engaged in coastal trading in Australia's territorial sea, in the EEZ and in the waters above the continental shelf.

2.2 The Minister *s response is at Appendix 1.

Road Safety Remuneration Regulation 2012

FRLI ID: F2012L01712 Introduced into the House of Representatives and the Senate on 21 August 2012 Portfolio: Employment and Workplace Relations

Committee view

2,3 The committee thanks the Minister for Employment and Workplace Relations for clarifying that the nature of the regulation's engagement with the right to a fair hearing, rights in work and the right to privacy. The committee makes no further comment on this regulation.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Purpose of the instrument

2.4 The purpose of the instrument is to prescribe the work health and safety laws of the States and Territories as capable of acting concurrently with the Road Safety Remuneration Act 2012.

2.5 The regulation:

" allows for representation by an industrial association in small claims matters in the Federal Magistrates Court or a court of a State;

" prescribes the information which the President of the Tribunal must provide to the Minister and the Fair Work Ombudsman regarding the operation of the Act and the functions of the Tribunal; and

" sets out the record keeping requirements for employers and hirers of road transport drivers, as well as for participants in the supply chain.

2.6 The Minister's response is at Appendix 1.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act2011 is invited to do so.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Appendix 1

Response to comments made in the Second and Third Reports of 2012

THE HON SIMON CREAN MP

Minister for Regional Australia, Regional Development and Local Government Minister for the Arts

Reference no: C12/20472

Mr Harry Jenkins MP Chair ' 1 8 SEP 2012

Parliamentary Joint Committee on Human Rights Parliament House Canberra ACT 2600

Dea ins \ * O

Thank you for your letter of 12 September 2012 regarding the National Portrait Gallery of Australia Bill 2012 (the Bill).

Since its establishment in 1998, the National Portrait Gallery has been a place where Australians can celebrate and protect important aspects of our national cultural heritage. As outlined under Article 15(1 )(a) of the International Covenant on Economic, Social and Cultural Rights, it is an important role for Governments to recognise the right to take part in cultural life. I welcome the Committee's attention to this Bill.

The primary purpose of this Bill is to provide the Gallery with an independent governance structure, a change which is appropriate and important at this point of the development of the Gallery. In practical terms, there will be little alteration to the functions or public activities undertaken by this already significant institution. The promotion of cultural life is something that the Gallery has been performing for over a decade.

I trust this clarifies the Committee *s request and thank the Committee for its interest in this matter.

SIMON CREAN

Parliament House Canberra ACT 2600 Telephone: (02) 6277 7380 Facsimile: (02) 6273 4117

THE HON BILL SHORTEN MP

MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

MINISTER FOR FINANCIAL SERVICES AND SUPERANNUATION

M r H arry Jenk ins M P,

Chair Parliamentary Joint Committee on H uman Rights Parliament H ouse

Canberra A CT 2600

D ear Chair

I am w riting in regards to a request for clarification from the Parliamentary Joint Committee on H uman Rights ( *the Committee *) in relation to the H uman Rights Compatibility Statement for the

Corporations Legislation A mendment (D erivative Transactions) Bill 2012 ( *the Bill *).

In the Committee *s third report of 2012, the Committee considered the Bill *s H uman Rights Compatibility Statement. In a letter to the D eputy Prime M inister and Treasurer, dated 19 September 2012, the Committee requested clarification in regards to the impact of the Bill on the right to be free from self-incrimination contained in article 14(3) of the International Covenant on

Civil and Political Rights ( *the ICCP R *). I am responding to the Committee *s request as I have

portfolio responsibility for this matter.

THE BILL

The Bill establishes a new licensing regime for trade repositories. Trade repositories will record derivative trade data and make it available to relevant regulators. This information can be used by

regulators for monitoring market integrity and stability. Trade repositories also have the potential

to facilitate efficiency improvements in post-trade processing and production of high-level

statistical data for market use.

U nder S.904C, w hich the Bill inserts into the Corporations A ct 2001 ( *the A ct *), the Bill requires a

licenced trade repository to report to A SIC as soon as practicable, if the licensee becomes aw are that it may no longer be able to meet, or has breached, an obligation under section 904A.

This encompasses a failure to comply w ith any conditions on its licence, a failure to register as a

foreign body corporate operating in A ustralia (if it is such a foreign body corporate and is required

to so register under the Act), or a failure to ensure that no disqualified individuals becomes or

remains involved in the operator.

The H uman Rights Compatibility Statement concluded that these requirements do not engage the right to be free from self-incrimination because the requirements are civil in nature.

Parliament House, Canberra ACT 2600 Telephone: (02) 6277 7320 Facsimile: (02) 6273 4115

2

THE COMMITTEE *S REPORT

The Committee noted in the report that failure to comply w ith the duties to w hich the notification

requirement in section 904C applies are offences under section 1311(1) o f the Corporations A ct

2001 .

The Committee also stated that it was unclear w hether the section is intended to abrogate the right

against self-incrimination, and that if civil penalties are high enough they may constitute a criminal

charge for the purposes o f article 14(3) of the ICCPR.

The committee sought clarification on the follow ing matters:

" in w hat respect these requirements are considered civil in nature;

* w hether section 904C intends to abrogate the privilege against self-incrimination; and

" if so, w hether safeguards are provided to prevent any self-incriminating information obtained

as a result o f the requirement to comply w ith section 904C from being used in any subsequent

criminal proceedings.

RESPONSE

Civil nature of penalties

Section 904C requires licensees to notify A SIC of failures to comply w ith the follow ing obligations:

" to comply w ith the conditions on their licence;

* if the licensee is a foreign body corporate * be registered under D ivision 2 o f Part 5B.2 o f the

Act; and

* take all reasonable steps to ensure that no disqualified individual becomes, or remains,

involved in the operator under D ivision 2 of Part 7.4.

These obligations are primarily civil in nature and breaches may attract injunctive and

compensatory remedies; and may form the basis o f regulatory actions in relation to the trade

repositories licence.

H ow ever, subsection 1311(1) provides that by default (unless otherw ise provided for) a breach of

any requirement in the A ct is an offence. The balance o f the section, read in conjunction w ith Schedule 3 to the A ct has the effect that the reportable breaches are potentially strict liability

offences w ith a maximum penalty o f 5 penalty units ($550). Through an oversight, the H uman Rights Statement did not identify the potential application of this provision. It is acknow ledged that

it is not strictly correct to state that the obligations are purely *civil *.

We note that this penalty w ould be, in practice, insignificant for any entity capable o f being licensed

as a trade repository, w hich w ould count strongly against any criminal prosecution being

commenced for breach. A ll such entities will need to have substantial financial resources as is

required w hen operating significant financial market infrastructure. A s such no entity w ould be

licenced for w hom this penalty w ould be particularly severe or punitive.

While the result o f this section is that a licensee may be subject to an offence the Bill, for reasons

outline below , there are additional grounds w hy the provision does not breach article 14(3) o f the

ICCPR (w hile it does abrogate the privilege against self-incrimination).

3

Abrogation of the privilege against self-incrimination

I can confirm that section 904C w ould be intended to abrogate the privilege against self≠ incrimination by licensed trade repositories in relation to these 5 penalty unit offences, This intention must be seen in light of the licensing regime established in the Bill which only applies to body corporates. A rticle 14(3) o f the ICCPR does not apply to body corporates and therefore a

human right as set out in the ICCPR is not abrogated.

U nder ss.905B and 905C only a body corporates may apply to A SIC for a licence to operate a trade

repository. S.905B states that *a body corporate may, by lodging an application with A SIC in the prescribed form, apply for a licence (an Australian derivative trade repository licence ) authorising the body corporate to operate a derivative trade repository *. S.905C(a) then goes on to state that

A SIC may only grant a licence w here the *application was made in accordance w ith S.905B *.

Justification for the notification

While it is my view that the human right referred to in article 14(3) o f the ICCPR is not engaged, for completeness, I note that the right may be subject to permissible limitations, provided that the ∑ limitations are for a legitimate objective, and are reasonable, necessary and proportionate to that

objective. Similarly, I accept that the privilege against self-incrimination, in so fax' as it relates to a body corporates, should only be infringed in a reasonable, necessary and proportionate w ay

(notw ithstanding that no human right is involved).

Trade repositories w ill be a key element of A ustralia *s financial market infrastructure.

A ny disturbance to the smooth provision of financial market infrastructure services w ould impact on trading in a range o f important financial markets, potentially causing significant systemic disruption, damage to market integrity and loss o f investor confidence.

The disruption of any trade repository facility may be expected to have less impact on market

operations than disruption of other kinds of financial market infrastructure (financial markets or clearing and settlement facilities); how ever, some disruption could occur w here reported trade data is relied upon as a source of data for essential activities, such as trade confirmation. Liability to

report trades could also interfere w ith participants * ability to transact w ith counterparties in

jurisdictions w hich mandate trade reporting. G iven that many derivative markets are global in

nature, any such interference may significantly disrupt domestic derivative trading activity. The ongoing availability of current trade reporting data may also be important in assessing risk in

advance of or during a crisis.

D isruptions can occur at any point in the chain linking trading, clearing and settlement, w ith disruptions flow ing up and dow n the chain. M oreover, disruption to a financial markets' operations

may also have serious impacts on the real economy by obstructing capital-raising and undermining

market confidence.

Regulators therefore need to know w hen trade repositories are not complying with obligations

associated w ith their licences; in order to determine w hether the proper operation o f those facilities is at risk and to take decisive and timely action.

The problem being addressed is therefore considered to be very significant w ith the potential to undermine the stability of the financial system as well as to damage the real economy.

These considerations must be balanced against any possible exposure of a licensee to a 5 penalty unit offence.

4

I hope the above information is o f assistance.

Y ours (Sincerely

BILL SH O RTEN

MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

MINISTER FOR FINANCIAL SERVICES AND SUPERANNUATION

Mr Harry Jenkins MR Chair Parliamentary Joint Committee on Human Rights Parliament House CANBERRA ACT 2600

Thank you for of fetter of 12 September 2012 concerning the human rights statements of compatibiiity for the Fair Work Amendment Regulation 2012 (No. 2) (FW Amendment Regulation) and the Road Safety Remuneration Regulation 2012 (RSR Regulation).

Your committee has asked me to clarify whether the FW Amendment Regulation could be said to promote the enjoyment of just and favourable conditions of work contained in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The FW Amendment Regulation ensures that the Fair Work Act 2009 (FW Act) continues to apply to ships engaging in coastal trading, following commencement of the Coastal Trading (Revitalising Australian Shipping) Act 2012 and the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012

on 1 July 2012. The effect of the FW Act applying to these ships is that seafarers working regularly in the Australian coastal trade have the benefit of Australian workplace relations laws and a legislative safety net of employment terms and conditions. Providing coverage under the FW Act promotes the right to the enjoyment of just and favourable conditions of work as contained in article 7 of the ICESCR.

Your committee has also asked me to clarify whether the RSR Regulation promotes the right to the enjoyment of just and favourable conditions of work, the right to a fair hearing and the right to privacy.

The RSR Regulation promotes the the right to the enjoyment of just and favourable conditions of work, as contained in article 7 of the ICESCR, by providing that the Road Safety Remuneration Tribunal must take into account state and territory Work Health and Safety laws (however named) before making an order.

The RSR Regulation promotes the right to a fair hearing, as contained in article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) as it allows a person to be represented by an official of an industrial association in small claims proceedings.

Parliament House Canberra AC T 2600 Telephone (02) 6277 7320 Fax (02) 6273 4115

2

Finally, the RSR Regulation promotes the right to privacy as contained in article 17 of the ICCPR as it provides that an employer or hirer must make a copy of the records it has available for inspection on request by the driver or former driver to whom the record relates. Also, the driver or former driver, or a representative, may interview the employer or hirer about a record that the employer or hirer has made or will make. This supports Information Privacy Principle 6 in the Privacy Act 1988 which deals with access to records containing personal information, and thus promotes the right to privacy as contained in article 17 of the ICCPR.

I trust the information provided is helpful.

Regards

BILL SHORTEN

2 0 SEP 2012

Appendix 2

Full list of Legislative instruments introduced 17-20 September 2012

Page 65

Legend: C - Comments mode ; * -Advisory Letter.

Instrument Name FRLI ID

Aboriginal and Torres Strait Islander Commission Repeal Regulation 2012 F2012L01877 -Aged Care (Residential Care Subsidy - Amount of Accommodation Supplement) Determination 2012 (No. 2) F2012L01882 *

Aged Care (Residential Care Subsidy - Amount of Concessional Resident Supplement) Determination 2012 (No. 2) F2012L01886 * Aged Care (Residential Care Subsidy - Amount of Pensioner Supplement)

Determination 2012 (No. 2)

F2012L01884 *

Aged Care (Residential Care Subsidy - Amount of Respite Supplement) Determination 2012 (No. 2) F2012L01880 *

Aged Care (Residential Care Subsidy - Amount of Transitional Accommodation Supplement) Determination 2012 (No. 2) F2012L01885 *

Aged Care (Residential Care Subsidy - Amount of Transitional Supplement) Determination 2012 (No. 2) F2012L01879 *

Amendment of List of Exempt Native Specimens - New South Wales Ocean Trawl Fishery (11/09/2012) F2012L01867 *

ATSIC (Regional Councils - Election of Officeholders) Repeal Regulation 2012 F2012L01874 -CASA 301/12 - Instructions - RNP APCH LNAV and RNP APCH LNAV/VNAV on National Jet Systems, trading as Cobham Aviation Services Australia - Airline Services, B717-200 aircraft

F2012L01868 *

CASA EX144/12 - Exemption - operations without an approved digital flight data recorder F2012L01892 *

CASA EX145/12 - Exemption - Airservices Australia aerodrome rescue and fire fighting service (ARFFS) F2012L01890 *

CASA EX147/12 - Exemption - recency requirements for night flying (Virgin Australia Airlines Pty Ltd) F2012L01893 *

Civil Aviation Order 100.5 Amendment Instrument 2012 (No. 3) F2012L01872 * Clothing and Household Textile (Building Innovative Capability) Amendment scheme 2012 (No. 1) F2012L01894 -

Coal Mining Industry (Long Service Leave) Legislation Amendment Regulation 2012 F2012L01873 C

Defence (Declared Explosive Ordnance Depots) Instrument 2012 F2012L01891 -Defence Determination 2012/50 - Post Indexes - amendment *

Defence Determination 2012/51 - Leave and travel - amendment *

Defence Determination 2012/52 - Living-in accommodation - amendment * Environment Protection and Biodiversity Conservation Act 1999 - section 269A - Instrument Adopting and Revoking Recovery Plans (NSW, SA and WA) (10/09/2012)

F2012L01883 *

Higher Education Support Act 2003 - VET Provider Approval (No. 18 of 2012) F2012L01865 -Higher Education Support Act 2003 - VET Provider Approval (No. 19 of 2012) F2012L01866 -Income Tax Amendment Regulation 2012 (No. 4) F2012L01871 -

List of Acts to the Western Australian Parliament wholly or partly in force in Christmas Island (25 January to 6 September 2012 and not in previous lists)

*

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Page 66

Instrument Name FRLI ID

List of Acts to the Western Australian Parliament wholly or partly in force in Cocos (Keeling) Islands (25 January to 6 September 2012 and not in previous lists)

*

Patents Amendment Regulation 2012 (No. 1) F2012L01878 -

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 5) F2012L01887 * Private Health Insurance (Complying Product) Amendment Rules 2012 (No. 7)F2012L01888 * Schools Assistance Amendment Regulation 2012 (No. 1) F2012L01875 -

Telecommunications Amendment Regulation 2012 (No. 1) F2012L01876 *

Tertiary Education Quality and Standards Agency (Register) Guidelines 2012 F2012L01889 * User Rights Amendment Principles 2012 (No. 3) F2012L01881 *

Work Health and Safety Legislation Amendment Regulation 2012 (No. 1) F2012L01870 -

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Appendix 3

Practice Note 1

PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS P r a c t ic e N o t e 1

Introduction

This practice note:

(i) sets out the underlying principles that the committee applies to the task of scrutinising bills and legislative instruments for human rights

compatibility in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 ; and

(ii) gives guidance on the committee *s expectations with regard to information that should be provided in statements of compatibility.

The com m ittee *s approach to hum an

rights scrutiny

" The committee views its human rights

scrutiny tasks as primarily preventive in nature and directed at minimising risks of new legislation giving rise to breaches of human rights in practice. The committee also considers it has an educative role, which

includes raising awareness of legislation that promotes human rights.

" Consistent with the approaches adopted by other human rights committees in

other jurisdictions, the committee will test legislation for its potential to be incompatible with human rights, rather than considering

whether particular legislative provisions could be open to a human rights compatible interpretation. In other words, the starting point for the committee is whether the legislation could be applied in ways which would breach human rights and not whether

a consistent meaning may be found through the application of statutory interpretation principles.

" The committee considers that the inclusion of adequate human rights safeguards in the legislation will often be essential to the development of human rights compatible

legislation and practice. The inclusion of safeguards is to ensure a proper guarantee of human rights in practice. The committee observes that human rights case-law has also established that the existence of adequate safeguards will often go directly to the issue of whether the legislation in question is compatible. Safeguards are therefore neither ancillary to compatibility and nor are they merely 'best practice * add-ons.

" The committee considers that, where

relevant and appropriate, the views of human rights treaty bodies and international and comparative human rights jurisprudence can be useful sources for understanding the nature

and scope of the human rights defined in the Human Rights (Parliamentary Scrutiny) Act 2011 .

" The committee notes that previously settled drafting conventions and guides are not determinative of human rights compatibility and may now need to be re-assessed for the purposes of developing human rights compatible legislation and practice.

The com m ittee *s expectations for

statements of com patibility

" The committee views statements of

compatibility as essential to the consideration

P r a c t ic e N o t e 1 c o n t in u e d

of human rights in the legislative process. It is also the starting point of the committee's consideration of a bill or legislative

instrument.

" The committee expects statements to read as stand-alone documents. The committee relies on the statement to provide sufficient information about the purpose and effect of the proposed legislation, the operation of its individual provisions and how these may impact on human rights. While there is no prescribed form for statements under the Human Rights (Parliamentary Scrutiny) Act 2011, the committee has found the templates1 provided by the Attorney-

General *s Department to be useful models to follow.

" The committee expects statements to contain an assessment of whether the proposed legislation is compatible with human rights. The committee expects statements to set out the necessary information in a way that allows it to undertake its scrutiny tasks efficiently. Without this information, it is often difficult to identify provisions which

may raise human rights concerns in the time available.

" In line with the steps set out in the assessment tool flowchart2 (and related guidance) developed by the Attorney-General *s Department, the committee would prefer for statements to provide information that addresses the following three criteria where a bill or legislative instrument limits human rights:

1. whether and how the limitation is aimed at achieving a legitimate objective;

2. whether and how there is a rational

connection between the limitation and the objective; and

3. whether and how the limitation is

proportionate to that objective.

" If no rights are engaged, the committee

expects that reasons should be given, where possible, to support that conclusion. This is particularly important where such a conclusion may not be self-evident from the description of the objective provided in the statement of compatibility.

Se p t e m b e r 2012

1 http://www.ag. gov.au/Humanrightsandantidiscrimmatton/Pages/Stateinents-of-CoiTroatihilitv-temp1ates.asDx

2 http://wvw.ag.gov.au/HuiTmrightsandantidiscrimination/Pagesrtool-for-assessing-hiimaii-rights-compatibilitv.aspx

For further Information please contact:

Parliamentary Joint Committee on Human Rights

Tel. (02) 6277 3823 ∑ Fax. (02) 6277 5767

Email: human.rights@aph.gov.au

PO Box 6100, Parliament House

CANBERRA ACT 2600