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Australian Parliamentary Joint Committee on Human Rights |
2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
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Purpose
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The bill seeks to amend various Acts relating to foreign acquisitions and
takeovers to:
• introduce a new national security test requiring mandatory
notification for investments in a sensitive national security business
or land,
and allowing investments not otherwise notified to be 'called in' for review if
they raise any national security concerns;
• strengthen the Treasurer and Commissioner of Taxation's enforcement
powers by increasing penalties, directions powers and
new monitoring and
investigative powers;
• close potential gaps in the screening regime;
• expand information sharing arrangements; and
• establish a new Register of foreign owned assets to record all
foreign interests acquired in Australian land, water entitlements
and
contractual water rights, and business acquisitions that require foreign
investment approval
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Portfolio
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Treasury
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Introduced
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House of Representatives, 28 October 2020
Passed both Houses on 9 December 2020
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Rights
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Privacy; work; equality and non-discrimination; life; torture, cruel,
inhuman or degrading treatment or punishment; fair hearing
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2.3 The committee requested a response from the Treasurer in relation to the bill in Report 14 of 2020.[3]
2.4 The bill seeks to authorise the disclosure of protected information to a foreign government, or a separate government entity in relation to a foreign country, if the information is disclosed in the course of the person performing their functions or duties, or exercising their powers under the Act, or the person is satisfied that disclosing the information will assist or enable the foreign government or entity to perform a function or duty, or exercise a power of that government or entity.[4] 'Protected information' is information obtained under, in accordance with or for the purposes of the Act and could include personal information, meaning information or an opinion about an identified individual or an individual who is reasonably identifiable.[5] Protected information could be disclosed to a foreign government or entity if:
• the Treasurer is satisfied that information relates to a matter for which a national security risk may exist for Australia or the foreign country;
• the Treasurer is satisfied that disclosure would not be contrary to the national interest;
• the person disclosing the information is satisfied it would only be used in accordance with an agreement between the Commonwealth or a Department of State, authority or agency of the Commonwealth and a foreign government or entity; and
• the foreign government or entity has undertaken not to use or further disclose the information except in accordance with the agreement or otherwise as required or authorised by law.[6]
2.5 The Treasurer may impose conditions to be complied with by the foreign government or entity in relation to the disclosed protected information.[7]
2.6 By authorising the disclosure of protected information, including personal information, to foreign governments or entities for the purpose of assisting them to perform a function or duty, or exercise a power, the measure engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including respect for private and confidential information, particularly the storing, use and sharing of such information.[8] It also includes the right to control the dissemination of information about one's private life.
2.7 The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.8 In addition, to the extent that the measure would authorise the disclosure of protected information relating to national security risks posed by an individual to a foreign government which might then use it to investigate and convict a person of an offence to which the death penalty applies, the right to life may be engaged and limited. The right to life imposes an obligation on Australia to protect people from being killed by others or identified risks.[9] While the International Covenant on Civil and Political Rights does not completely prohibit the imposition of the death penalty, international law prohibits states which have abolished the death penalty (such as Australia) from exposing a person to the death penalty in another state. This includes prohibiting the provision of information to other countries that may use that information to investigate and convict someone of an offence to which the death penalty applies.[10] Additionally, it is not clear if sharing protected information with foreign governments, in circumstances relating to the investigation of national security matters, could risk exposing a person to torture or cruel, inhuman or degrading treatment or punishment. Australia has an obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment.[11] Under international law the prohibition on torture is absolute and can never be subject to permissible limitations.[12]
2.9 In order to assess the compatibility of this measure with human rights, further information is required as to:
(a) what is the nature and scope of personal information that is authorised to be disclosed to a foreign government or entity;
(b) whether the proposed limitation on the right to privacy is only as extensive as is strictly necessary, noting that the purpose for which protected information can be disclosed to a foreign government or entity is very broad;
(c) what are the consequences, if any, of a foreign government failing to use protected information in accordance with an agreement, particularly where an individual's right to privacy is not protected;
(d) how the specific safeguards in the Australian Privacy Principles and the Privacy Act 1988 operate with respect to this measure;
(e) why there is no requirement in the bill requiring that the agreement with the foreign government or entity must seek to include privacy protections around the handling of personal information, and protection of personal information from unauthorised disclosure;
(f) what is the level of risk that the disclosure of protected information relating to national security could result in: the investigation and conviction of a person for an offence to which the death penalty applies in a foreign country; and/or a person being exposed to torture or cruel, inhuman or degrading treatment or punishment in a foreign country; and
(g) what, if any, safeguards are in place to ensure that information is not shared with a foreign government or entity in circumstances that could expose a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment, including:
(i) the approval process for authorising disclosure; and
(ii) whether there will be a requirement to decline to disclose information where there is a risk that it may expose a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment.
2.10 The committee noted that this measure engages and limits the right to privacy. To the extent that there may be a risk that disclosure of protected information to a foreign government or entity could expose a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment, the measure may engage and limit the right to life and the prohibition against torture or cruel, inhuman or degrading treatment or punishment.
2.11 The committee noted that the right to privacy may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. The committee considered that the measure seeks to enhance compliance with the Foreign Acquisitions and Takeovers Act 1975 and address national security risks. This appears to be a legitimate objective for the purpose of international human rights law, and the measure would appear to be rationally connected to that objective. The committee noted that some questions remained as to the proportionality of the measure.
2.12 In order to form a concluded view of the human rights implications of these measures, the committee sought the Treasurer's advice as to the matters set out at paragraph [2.9].
2.13 The full initial analysis is set out in Report 14 of 2020.
2.14 The Treasurer advised:
Protected information is defined in subsection 120(1) of the Foreign Acquisitions and Takeovers Act 1975 (FATA) to mean information obtained under and in accordance with the FATA (with certain exceptions). Protected information obtained under the FATA is used by the Treasurer to make decisions on whether certain foreign acquisitions or mergers are contrary to the national interest. Protected information can include personal information as defined under the Privacy Act 1988. Personal information may include a person’s name, address, email address and phone number.
The amendments provide that protected information under the FATA may be shared with foreign governments in limited circumstances. These circumstances are where national security risks may exist, where it is not contrary to the national interest to do so, and where there is an agreement in place between Australia and the foreign government. The permitted scope of sharing information with foreign governments needs to be sufficiently broad to provide the Treasurer with sufficient flexibility in assessing and addressing national security risks. However, there are protections to put appropriate limits on disclosure.
The exchange of information with foreign governments may be necessary for the Treasurer to obtain a ‘full picture’ of the applicant, as the applicant may be making similar investments in other countries. This would allow the Treasurer to leverage the knowledge and experience of other countries. Being able to draw on the knowledge and experience of other countries would allow the Treasurer to better assess any potential national security risks and make an assessment on cases related to national security. Additionally, sharing may be necessary where a national security risk for another country is identified and that risk poses an indirect national security risk for Australia.
Information would only be used in accordance with the agreement between Australia and the foreign government and that information would not be further disclosed unless in accordance with that agreement. Information cannot be shared unless such an agreement is in place. Australia would need to negotiate individual agreements with foreign governments setting out mutually agreed standards for handling personal and commercial-in-confidence information. These individual agreements would need to provide that the information can only be used for the purpose for which it is shared. The agreement would provide for adequate protections for the use of information and could have mechanisms in place to resolve differences with the foreign government. Proposed paragraph 123B(1)(e) stipulates the sharing of information would not occur unless the foreign government undertakes not to use or further disclose the information in accordance with the agreement or otherwise as required or authorised by law. Additionally, if further constraints or protections are required when the information is shared, proposed subsection 123B(3) allows the Treasurer to impose conditions in relation to the information to be disclosed.
In line with its obligations under the Privacy Act 1988, the Government would seek to include privacy related protections in the agreements, as appropriate, to prevent any unnecessary release of information. However, as any information proposed for sharing will relate to national security risks, and therefore possible law enforcement actions, the receiving agencies should be able to receive sufficient information to identify persons or entities of interest for further inquiries. This approach is consistent with exceptions under the Privacy Act 1988, which exempts the applications of the Australian Privacy Principles for appropriate action relating to suspected unlawful activity or serious misconduct. It is difficult to predict whether the sharing of protected information may result in persons being at risk of the death penalty, or a person being exposed to torture or cruel, inhuman or degrading treatment or punishment in a foreign country because such risk is highly dependent on the particular circumstances of each case. Such risk can be considered in any decision to share information, where relevant.
In negotiating the relevant agreements, the Government intends to act consistently with the Australian Government’s official policy to oppose the death penalty in all circumstances for all people. Further, negotiators intend to be guided by the Australian Government’s broader approach to seek assurances of protection against exposing a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment in relation to extradition treaties and mutual assistance arrangements, to the extent relevant. For example, an agreement may limit the use of the information for the investigation and enforcement of foreign investment related legislation only, and require that the other country does not impose the death penalty. In such instances, seeking explicit assurances would appear unnecessary.
In negotiating and finalising these agreements, the Government will seek advice from all relevant agencies on appropriate measures and assurances to ensure effective outcomes, whilst ensuring appropriate human rights protections.
The Government has not yet commenced negotiating any international agreements under proposed section 123B. Where the negotiations result in a treaty level agreement, then in accordance with established practice, any agreement proposed to be entered into by the Government will be tabled in Parliament and subject to scrutiny by the Joint Standing Committee on Treaties.
The Joint Standing Committee on Treaties would be able to review the appropriateness of the international agreement and provide adequate oversight and scrutiny on any proposed agreements between Australia and foreign governments.
2.15 In assessing the proportionality of the measure, it is relevant to consider whether the proposed limitation on the right to privacy is sufficiently circumscribed and only as extensive as is strictly necessary. The nature and scope of personal information that is authorised to be disclosed and the purpose for which protected information can be disclosed to a foreign government or entity are relevant considerations. The Treasurer has advised that protected information means information obtained under and in accordance with the Foreign Acquisitions and Takeovers Act 1975 (FATA). It includes personal information such as a person’s name, address, email address and phone number. The Treasurer has stated that protected information obtained under FATA is used to make decisions on whether certain foreign acquisitions or mergers are contrary to the national interest. The Treasurer has noted that information can only be shared where an agreement is in place between the Commonwealth and a foreign government, and the agreement would need to provide that information can only be used for the purpose for which it is shared. The Treasurer has advised that the permitted scope of sharing protected information with foreign governments needs to be sufficiently broad to provide the Treasurer with flexibility to assess and address national security risks. The Treasurer has stated that such information sharing arrangements would enable the Treasurer to draw on the knowledge and experience of other countries to assess potential national security risks, including indirect national security risks posed by a security risk in another country, and cases related to national security.
2.16 As noted in the initial analysis, the legislative purpose for which protected information could be disclosed to a foreign government appears to be very broad insofar as the measure would appear to allow protected information to be disclosed to, and used by, a foreign government to perform a wide variety of functions or duties, or exercise a broad scope of powers.[14] If an agreement specified the precise circumstances in which protected information could be disclosed and the specific purpose for which that information could be used and further disclosed, it may operate to ensure that any limitation on the right to privacy is only as extensive as is strictly necessary. However, it is not clear that agreements would be this precise in practice, noting the Treasurer’s advice that the permitted scope of information to be shared with foreign governments needs to be sufficiently broad to respond to direct and indirect national security risks. Concerns therefore remain as to whether the measure is sufficiently circumscribed and the proposed limit on the right to privacy would be only as extensive as is strictly necessary in all cases.
2.17 Another relevant factor in assessing the proportionality of the measure is whether the measure is accompanied by sufficient safeguards. The Treasurer has stated that protections exist to place appropriate limits on the disclosure of protected information, specifically, the requirement that information only be used in accordance with an agreement between the Commonwealth and a foreign government, and the government’s obligations under the Privacy Act 1988 (Privacy Act). With respect to agreements, the Treasurer has advised that individual agreements would need to be negotiated between the Commonwealth and a foreign government, setting out mutually agreed standards for handling personal and commercial-in-confidence information. The Treasurer has stated that agreements would need to provide that information can only be used for the purpose for which it is shared and not further disclosed unless in accordance with the agreement. Proposed subsection 123B(3) allows the Treasurer, where appropriate, to impose conditions to be complied with by a foreign government in relation to the information to be disclosed. The Treasurer has noted that agreements could include mechanisms to resolve differences with the foreign government. Regarding protection of the right to privacy, the Treasurer has advised that the government would seek to include privacy related protections in the agreements, as appropriate, to prevent any unnecessary release of information.
2.18 Where an agreement includes adequate privacy protections, such as protections around the handling of personal information both before and after it is disclosed, and protection of personal information from unauthorised disclosure, it may operate to adequately safeguard the right to privacy. However, while the government states that it intends to include privacy protections, as currently drafted, the bill does not require privacy protections to be included in such agreements. As such, the strength of an agreement as a safeguard will depend on the contents of each individual agreement. If privacy protections were unable to be mutually agreed and thus not included in an agreement, the requirement that foreign governments only use information or not further disclose information except in accordance with the agreement will unlikely operate to protect the right to privacy. It also remains unclear what the consequences are, if any, of a foreign government failing to use protected information in accordance with an agreement, particularly where an individual’s right to privacy is not protected.
2.19 With respect to the government’s obligations under the Privacy Act, the Treasurer has noted that the Privacy Act exempts the application of the Australian Privacy Principles (APPs) for appropriate action relating to suspected unlawful activity or serious misconduct. The Treasurer has stated that the information sharing arrangements are consistent with these exceptions, and while the government would seek to include privacy protections in agreements, it is necessary that foreign governments receive sufficient information to identify persons or entities of interests for further investigation. As noted in the initial analysis, the Privacy Act and the APPs may not mitigate concerns about interference with the right to privacy for the purposes of international human rights law because they contain broad exceptions to the prohibition on use or disclosure of personal information for a secondary purpose. Noting the Treasurer’s advice that the measure would fall within the exceptions under the Privacy Act, the APPs do not appear to be an adequate safeguard to protect the right to privacy in this instance.
2.20 In conclusion, concerns remain as to whether the proposed limitation on the right to privacy is proportionate. While an international agreement may operate as a safeguard insofar as it could elucidate the precise circumstances in which interferences with privacy may be permitted and include adequate privacy protections, the effectiveness of this safeguard will depend on the specific contents and enforceability of each agreement. In negotiating agreements, there remains a risk that adequate privacy protections may not be mutually agreed to and complied with by a foreign government. Additionally, the Privacy Act and the APPs are unlikely to operate as an effective safeguard as the information sharing arrangement would appear to fall within the exceptions under the Privacy Act.
2.21 Regarding the possibility that the measure engages and limits the right to life or engages the prohibition against torture or cruel, inhuman or degrading treatment or punishment, the Treasurer has stated that it is difficult to predict whether the sharing of protected information may result in persons being at risk of the death penalty or being exposed to torture or cruel, inhuman or degrading treatment or punishment in a foreign country. This is because such a risk is highly dependent on the particular circumstances of each case. The Treasurer has advised that such a risk can be considered in any decision to share information. In negotiating agreements, the Treasurer has stated that the government intends to act consistently with its official policy to oppose the death penalty, and to the extent relevant, be guided by its broader approach to seek assurances of protection against exposing a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment in relation to extradition treaties and mutual assistance arrangements. Additionally, the Treasurer has noted that an agreement may be negotiated to limit the use of the information for investigation and enforcement of foreign investment related legislation only and require that the death penalty not be imposed. In such cases, the Treasurer has stated that seeking explicit assurances would appear to be unnecessary.
2.22 As regards the government’s intention to seek assurances of protection, it should be noted that assurances may be able to serve as a safeguard to protect persons against exposure to the death penalty. The UN Human Rights Committee has stated that, for this to be the case, diplomatic assurances must be 'credible and effective...against the imposition of the death penalty'.[15] However, it has also noted that diplomatic assurances alone may not be sufficient to eliminate the risk in circumstances where there is no mechanism for monitoring of their enforcement or no means through which the assurances could be effectively implemented.[16] There are also significant questions around whether diplomatic assurances not to subject a person to torture or cruel, inhuman or degrading treatment or punishment can ever be sufficient, noting the unenforceability of such assurances and the difficulties in monitoring compliance.[17] As regards the effectiveness of including a condition in an agreement that the death penalty not be imposed, this will depend on the form of the agreement and its enforceability.
2.23 The Treasurer has noted that the government has not yet commenced negotiating any agreement under section 123B, but where such negotiations result in a treaty level agreement, it will be subject to scrutiny by the Joint Standing Committee on Treaties. Review by the Joint Standing Committee on Treaties could provide an important level of oversight and scrutiny but would only apply to treaty level agreements. It is also noted that such a review would not necessarily consider the human rights implications of any such agreement. While the government may intend to act consistently with its policy to oppose the death penalty and seek assurances or the inclusion of conditions in agreements regarding the limited use of information for a specified purpose, it is not a legal requirement to do so. The measure does not prohibit the sharing of information with a foreign government or entity in circumstances that could expose a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment. The UN Human Rights Committee has previously raised concerns that Australia lacks 'a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state', and concluded that Australia should take steps to ensure it 'does not provide assistance in the investigation of crimes that may result in the imposition of the death penalty in another State'.[18] Without a comprehensive prohibition, the Treasurer’s discretion to consider the risk of exposing a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment with respect to decisions to share information with a foreign government, and seek assurances where appropriate, appears to be insufficient for the purpose of meeting Australia’s obligations with respect to the right to life and the prohibition on torture or cruel, inhuman or degrading treatment or punishment.
2.24 The committee thanks the Treasurer for this response. The committee notes that the measure serves a very important purpose in safeguarding Australia’s national security, by authorising the disclosure of protected information relating to national security, including personal information, to a foreign government or entity for the purpose of assisting the foreign government or entity to perform a function or duty, or exercise a power.
2.25 The committee notes the Treasurer’s advice that the scope of sharing information with foreign governments needs to be sufficiently broad to provide the Treasurer with flexibility in assessing and addressing national security risks. It also notes the Treasurer’s advice that there are protections in place to limit disclosure, notably, that information cannot be used or further disclosed unless in accordance with an agreement, and the government’s obligations under the Privacy Act 1988.
2.26 Where an agreement with a foreign country includes adequate privacy protections and sufficiently circumscribes the circumstances in which interferences with a person’s privacy may be permitted, this could operate to safeguard the right to privacy. However, the committee notes that the strength of this safeguard may vary depending on the mutually agreed standards and enforceability mechanisms contained in each agreement. The committee further notes the Treasurer’s advice that the information sharing arrangements fall within the exceptions under the Privacy Act 1988. Accordingly, the Australian Privacy Principles may not necessarily operate to safeguard the right to privacy with respect to this measure. As such, the committee considers that some questions remain as to whether the proposed limitation on the right to privacy would be proportionate in all circumstances.
2.27 To assist with the proportionality of this measure with respect to the right to privacy, the committee recommends that the Act be amended to provide that:
(a) when considering disclosure of protected information to a foreign government or entity, an individual’s right to privacy is considered, including the likely extent of interference with the privacy of any person or persons so as to ensure that any limitation on the right to privacy is only as extensive as is strictly necessary; and
(b) adequate privacy protections around the handling of personal information and protection of personal information from unauthorised disclosure are included as enforceable standards in all negotiated agreements with a foreign government.
2.28 With respect to the right to life and prohibition against torture or cruel, inhuman or degrading treatment or punishment, the committee notes the Treasurer’s advice that it is difficult to predict whether the sharing of protected information may result in a risk of exposing a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment in a foreign country because such a risk is highly dependent on the particular circumstances of each case. The committee notes the Treasurer’s advice that the government intends to act consistently with its official policy to oppose the death penalty and its broader approach to seek assurances. The committee considers that where there is a risk of the death penalty being applied, this may be mitigated by including conditions in an agreement that protected information only be used in matters that would not lead to the application of the death penalty. However, noting that there is no legislative requirement to prohibit the sharing of personal information in circumstances that may expose a person to a real risk of the death penalty being applied or to ill treatment, the committee considers that discretionary considerations and assurances may be insufficient for the purpose of meeting Australia’s obligations with respect to the right to life and the prohibition on torture or cruel, inhuman or degrading treatment or punishment.
2.29 To assist with the compatibility of the measure, the committee recommends that the Act be amended to provide that where there are substantial grounds for believing there is a real risk that disclosure of information to a foreign government may expose a person to the death penalty or to torture or cruel, inhuman or degrading treatment or punishment, protected information must not be shared with that government.
2.30 The committee draws these human rights concerns to the attention of the Parliament.
2.31 The bill seeks to allow the Treasurer to make a direction if they have 'reason to believe' that a person has engaged, is engaging, or will engage in conduct that would constitute a contravention of the Act.[19] The Treasurer may direct the person to engage in conduct that addresses or prevents the contravention or a similar or related contravention.[20] Proposed subsection 79R(7) states that this includes the power to direct specified persons or specified kinds of persons, such as 'persons who are not Australian citizens, or who are foreign persons', to cease being or not become senior officers of a corporation.[21] The Treasurer may also direct that a specified proportion of the senior officers of the corporation are not specified kinds of people.[22] A direction made by the Treasurer must be published on a website maintained by the Department as soon as practicable after it is made.[23] Failing to comply with a direction made by the Treasurer is a criminal offence subject to up to 10 years imprisonment or 15,000 penalty units, or subject to a civil penalty of up to 5,000 penalty units.[24]
2.32 By authorising the Treasurer to make directions requiring specified persons or kinds of persons to cease being, or not become, senior officers of a corporation, the right to work is engaged and limited. The right to work provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.[25] This right must be made available in a non-discriminatory way.[26]
2.33 While the directions power may apply to any person who has contravened, or may contravene, the Act, insofar as the directions power may apply to persons on the basis that they are foreign persons (being those not ordinarily resident in Australia) and persons who are not Australian citizens[27] and may have the effect of depriving them of certain types of work, the measure also engages and limits the right to equality and non-discrimination. This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[28] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[29] Where the direction may treat non-Australian citizens differently to Australian citizens, this would have the effect of constituting direct discrimination. Where the direction may treat foreign persons (being those not ordinarily resident in Australia) differently to Australian residents, this may impact on non-nationals disproportionately and may constitute indirect discrimination.[30]
2.34 Additionally, as the measure would authorise interference with a person's private life and workplace, and require that directions, which may contain personal information, be published on a public website, the right to privacy is engaged and limited. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[31] This includes a requirement that the state does not arbitrarily interfere with a person's private and home life, which includes a person's workplace.[32] The right to privacy also includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[33]
2.35 The rights to work, equality and non-discrimination and privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.36 In order to assess the compatibility of this measure with the rights to work, equality and non-discrimination and privacy, further information is required as to:
(a) what is the substantial and pressing concern that the measure seeks to address and how is the measure rationally connected to the objective;
(b) what, if any, safeguards are in place to ensure that the measure does not unlawfully discriminate against persons with protected attributes, particularly national origin;
(c) why is it appropriate that the standard of 'reason to believe' should be required for the Treasurer to make directions, noting the potential interference with human rights by making a direction, and whether 'reason to believe' imports a requirement that the belief must be one that is reasonable;
(d) why the bill does not set out that the Treasurer is required to afford a person an opportunity to make submissions on the matter before the Treasurer makes or varies a direction;
(e) whether consideration has been given to other less rights restrictive ways to achieve the objective; and
(f) whether there is the possibility of oversight and the availability of review of the Treasurer's decision to make a direction.
2.37 The committee noted that this measure engages and may limit the rights to work, equality and non-discrimination and privacy. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.38 The committee noted that the measure pursues the legitimate objective of ensuring compliance with the Act and supporting early regulatory intervention in order to protect further or ongoing harm to the national interest. However, further information was required as to whether the measure addresses a substantial and pressing concern and is rationally connected to the objective, and is proportionate.
2.39 In order to form a concluded view of the human rights implications of these measures, the committee sought the Treasurer's advice as to the matters set out at paragraph [2.36].
2.40 The full initial analysis is set out in Report 14 of 2020.
2.41 The Treasurer advised:
Treasury’s approach to managing compliance has evolved over recent years as the nature and type of acquisitions has changed. It has become increasingly clear that community expectations have risen, and Members of Parliament expect Treasury to be able to assure the Australian community that effective monitoring and compliance arrangements are in place.
The amendments meet these expectations by enhancing and expanding the Treasury’s enforcement and compliance toolkit. The Bill brings the compliance and enforcement tools available to Treasury in line with other regulators, including those in the Treasury portfolio.
The Bill introduces new powers to provide the Treasurer with the ability to give directions to investors to prevent or address suspected breaches of conditions or of foreign investment laws, providing the Treasurer the ability to respond to actual or likely non-compliance. This is similar to the Australian Prudential Regulation Authority's power under the Superannuation Industry (Supervision) Act 1993 to issue a direction to a person who is in control of the RSE licensee to relinquish that control, where APRA has reason to believe that the person has been, or is unlikely to be, able to satisfy one or more of the trustee’s obligations, does not have the relevant approvals, or provided false or misleading information.
The Treasurer's directions are designed to provide a quick and efficient response to the conduct of a person and to require the person to promptly remedy a breach of the FATA. The power supports early regulatory intervention in order to protect further or ongoing harm to the national interest.
The measure will ensure that the Treasurer will have sufficient powers to intervene early to ensure compliance with the FATA. Directions given by the Treasurer are aimed at protecting Australia’s national interest and preventing or addressing suspected breaches of the law.
The term 'reason to believe' is not intended to create a lower or different bar to the term 'reasonably believes'. It is an appropriate standard to apply here as the directions and interim directions are intended to be flexible and responsive mechanisms to enable prompt regulatory action and remedies, as stated above.
The issue of a directions order by the Treasurer is aimed at correcting or preventing non-compliance. Therefore the provisions do not apply to the general public, but to persons and entities who should be reasonably aware of their obligations under the FATA.
Procedural fairness and the opportunity for a person to engage with the Treasury prior to enforcement action being taken is inherent in the approach taken to administering Australia’s foreign investment screening regime. It has been longstanding practice of the Treasury to work with a foreign investor to achieve compliance where non-compliance is identified. Procedural fairness obligations already apply to the Government’s ongoing administration of the FATA, and a requirement to meet its procedural fairness obligations being placed on the face of the Bill would create doubt elsewhere in the FATA where procedural fairness obligations already apply. In accordance with existing procedural fairness obligations, Treasury gives persons an opportunity to make submissions on a matter before Treasury provides advice or the Treasurer makes or varies a direction.
Finally, in terms of review, administrative decisions made under the FATA are subject to judicial review under section 39B of the Judiciary Act 1903.
2.42 With respect to the objective being pursued by the measure, the Treasurer has advised that the Treasurer’s directions powers meet community expectations by enhancing and expanding the Treasury’s enforcement and compliance toolkit. The Treasurer has stated that the community and members of Parliament now expect the Treasury to be able to assure the Australian community that effective monitoring and compliance arrangements are in place with respect to breaches of foreign investment laws. The directions powers are intended to provide the Treasurer with the power to quickly and efficiently respond to actual or likely non-compliance with FATA and to require a person to promptly remedy a breach. The Treasurer explains that this power supports early regulatory intervention in order to protect further or ongoing harm to the national interest.
2.43 The initial analysis noted that while the objective of ensuring compliance with FATA in order to protect the national interest may be capable of constituting a legitimate objective, it was unclear whether the measure addressed a pressing and substantial concern for the purposes of international human rights law. A legitimate objective is one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right. Community expectations or seeking an outcome that is regarded as desirable or convenient is not generally a sufficient justification for limiting human rights. The Treasurer’s response does not explain why it is necessary to introduce pre-emptive compliance powers rather than responding to contraventions if they occur. While pursuing the objective of ensuring compliance with the FATA would appear to be desirable, without further information regarding the extent of actual or likely non-compliance and the substantial or pressing need to expand pre-emptive enforcement powers, it is difficult to conclude that the measure pursues a legitimate objective for the purposes of international human rights law.
2.44 In assessing the proportionality of the measure, the scope of the directions power and the basis on which a direction can be made are relevant considerations in determining whether the proposed limitation is sufficiently circumscribed. The Treasurer has stated that the directions to be given by the Treasurer are aimed at protecting Australia’s national interest and preventing or addressing suspected or actual breaches of the FATA. The Treasurer has noted that the measure applies to persons or entities who are subject to the FATA and should be reasonably aware of their obligations under the FATA. Regarding the basis on which a direction can be made, the Treasurer has advised that the standard 'reason to believe' that a person has engaged, is engaging, or will engage in conduct that would constitute a contravention of the Act, is not intended to be a lower or different bar to the standard 'reasonably believes'. The Treasurer has stated that the standard 'reason to believe' is appropriate in the circumstances as the directions are intended to be flexible and responsive mechanisms to enable prompt regulatory action and remedies.
2.45 As noted in the initial analysis, laws conferring discretionary powers on the executive, which limit human rights, must indicate with sufficient clarity the scope of any such power or discretion conferred on competent authorities and the manner of its exercise.[35] This is because, without sufficient precision and the existence of safeguards, broad powers may be exercised in such a way as to be incompatible with human rights. The Treasurer’s response indicates that the measure is intended to apply in a regulatory context and those to whom it is addressed are reasonably likely to be aware of their obligations under the FATA. The Treasurer has clarified that the standard on which a direction can be made is not lower than the standard 'reasonably believes' and would appear to import a requirement that the belief must be one that is reasonable. However, while some degree of flexibility is required in order to address actual or likely non-compliance and accepting that the measure cannot provide for every eventuality, concerns remain that the scope of the directions powers is very broad. The measure empowers the Treasurer to direct a person to engage in conduct as specified in the direction, in order to address or prevent a contravention or related contravention. The legislation does not limit the type of conduct that can be specified in the direction.[36] On this basis, there remain concerns as to whether the proposed limitation is sufficiently circumscribed.
2.46 The existence of safeguards is also relevant in considering proportionality. The Treasurer has advised that procedural fairness and providing a person with the opportunity to engage with the Treasury prior to enforcement action being taken is inherent in the approach taken by the government in administering the FATA. The Treasurer has explained that including in the Act a requirement to meet procedural fairness obligations would create doubt elsewhere in the FATA where procedural fairness obligations already apply. The Treasurer has noted that it is the practice of the Treasury to afford a person an opportunity to make a submission on the matter before the Treasurer makes or varies a direction. If the directions power is exercised in the manner set out by the Treasurer, whereby all persons are afforded an opportunity to make a submission on the matter before a direction is made or varied, the Treasurer’s procedural fairness obligations may serve as an important safeguard against the arbitrary exercise of executive discretion.
2.47 Another relevant factor in assessing the proportionality of the measure is whether there is the possibility of oversight and the availability of review. The Treasurer has stated that administrative decisions made under the FATA are subject to judicial review under section 39B of the Judiciary Act 1903. While judicial review of the Treasurer's decision to make or vary a direction is available, external merits review is not. Judicial review in Australia represents a limited form of review in that it allows a court to consider only whether the decision was lawful (that is, within the power of the relevant decision maker). The court cannot undertake a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision. While access to review is an important safeguard, its effectiveness may be weakened by the lack of access to merits review.
2.48 In conclusion, questions remain as to whether the measure addresses a substantial and pressing concern for the purposes of establishing a legitimate objective and is a proportionate means of achieving that objective. In particular, noting that the extent of interference with human rights could be quite substantial, such as depriving a person of certain types of work, concerns remain that the scope of the directions power is very broad and there is no access to merits review. As such, it is not clear that the measure includes sufficient safeguards to adequately protect the rights to work, equality and non-discrimination, and privacy.
2.49 The committee thanks the minister for this response. The committee notes that the measure would allow the Treasurer to make a direction if they have reason to believe that a person has engaged, is engaging or will engage in conduct which would constitute a contravention of the Foreign Acquisitions and Takeovers Act 1975 (FATA). This could include directions that ensure specified persons (such as non-Australian citizens) not be senior officers of specified corporations.
2.50 The committee notes that the measure pursues the important objective of expanding the Treasurer’s compliance and enforcement powers to support early regulatory intervention in order to protect further or ongoing harm to the national interest. The committee notes the Treasurer's advice that enhancing and expanding the Treasury’s enforcement and compliance powers will also meet community expectations. The committee accepts that these objectives may be legitimate but notes that questions remain as to whether the measure addresses a social concern that is pressing and substantial enough to warrant limiting human rights.
2.51 As regards proportionality, the committee accepts the Treasurer's advice that it is the longstanding practice of the Treasury to apply procedural fairness obligations in administering the FATA and persons who may be subject to a direction will have an opportunity to make a submission on the matter to the Treasurer before a direction is made or varied. The committee notes the legal advice that these safeguards may not be adequate in light of the broad scope of the directions power and the lack of access to merits review. As such, the committee considers it is not clear that the measure includes sufficient safeguards to adequately protect the rights to work, equality and non-discrimination, and privacy.
2.52 The committee draws these human rights concerns to the attention of the Parliament.
2.53 Schedule 2 of the bill seeks to introduce and significantly increase the penalties for contraventions of civil penalty provisions. With respect to the proposed directions power, for example, a person who fails to comply with a Treasurer's direction or interim direction would be liable to a civil penalty of 5,000 penalty units ($1.11 million).[37] Schedule 2 would also introduce a civil penalty of up to 2,500,000 penalty units (up to $555 million) for persons who provide false or misleading information to the Treasurer in relation to a no objection notification.[38] Information could be false or misleading because of the omission of a matter or thing.[39] Likewise a person who contravenes a condition specified in a no objection notification or a notice imposing conditions would be liable to a civil penalty of up to 2,500,000 penalty units ($555 million).[40]
2.54 The significant increase in civil penalties, including up to 2,500,000 penalty units ($555 million) for individuals, raises the risk that these penalties may be considered criminal in nature under international human rights law. Under Australian law, civil penalty provisions are dealt with in accordance with the rules and procedures that apply in relation to civil matters (the burden of proof is on the balance of probabilities). However, if the new civil penalty provisions are regarded as 'criminal' for the purposes of international human rights law, they will engage the criminal process rights under articles 14 and 15 of the International Covenant on Civil and Political Rights, including the right to be presumed innocent until proven guilty according to law,[41] which requires that the case against the person be demonstrated on the criminal standard of proof of beyond reasonable doubt. In assessing whether a civil penalty may be considered criminal, it is necessary to consider the domestic classification of the penalty as civil or criminal; the nature of the penalty; and the severity of the penalty.
2.55 Further information is required in order to conduct a full assessment of the potential limitation on criminal process rights, in particular:
(a) noting the potential severity of the civil penalties, why any of the civil penalties would not be characterised as criminal for the purposes of international human rights law; and
(b) if such penalties are 'criminal' for the purposes of international human rights law, how are these compatible with criminal process rights under international human rights law
2.56 The committee considered that increasing civil penalties may be appropriate given the potential financial benefits that may be derived from illegal behaviour and the potential harm to the national interest. However, noting the substantial pecuniary sanctions that would apply to individuals, including up to 2,500,000 penalty units ($555 million), there is a risk that the penalties may be so severe as to constitute a criminal sanction under international human rights law. If the penalties were to be considered 'criminal' under international human rights law, the proposed provisions must be shown to be consistent with the criminal process guarantees set out in articles 14 and 15 of the International Covenant on Civil and Political Rights.
2.57 In order to form a concluded view of the human rights implications of these measures, the committee sought the Treasurer's advice as to the matters set out at paragraph [2.55].
2.58 The full initial analysis is set out in Report 14 of 2020.
2.59 The Treasurer advised:
Consideration has been given to the guidance set out in the Parliamentary Joint Committee on Human Rights' Guidance Note 2: Offence provisions, civil penalties and human rights and to the Attorney General’s Department's A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
The Guidance Note observes that civil penalty provisions may engage criminal process rights under articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR), regardless of the distinction between criminal and civil penalties in domestic law. This is because the word ‘criminal’ has an autonomous meaning in international human rights law. When a provision imposes a civil penalty, an assessment is therefore required as to whether it amounts to a 'criminal' penalty for the purposes of articles 14 and 15 of the ICCPR.
While the civil penalties under the Bill are not classified as criminal under Australian law, consideration is nonetheless given to the nature, purpose and severity of the penalties.
The purpose of the increase to the maximum civil penalty is to act as a sufficient deterrent for misconduct. Treasury considers that the increased penalties do not amount to criminal penalties because the penalties do not apply to the public at large and are limited to persons and entities whose investments are screened under the FATA. These persons and entities should be aware of their obligations under the FATA. For example, a foreign person who has been given a no objection notification under section 74 or 75 or an exemption certificate given under Division 5 of Part 2 must not contravene a condition specified in the notification or in the certificate.
The maximum penalty for contravening a civil penalty provision for an individual is either 5,000 penalty units or 75 per cent of the value to which the alleged contravention relates, determined according to the introduced valuation rules. While this penalty is substantial, it is also comparable to recent penalty increases in the Australian Securities and Investments Commission Act 2001. The maximum penalty enables the imposition of an effective and commensurate penalty, noting that certain investments are not screened under the FATA unless the value of the investment exceeds $1.192 billion. The increased penalty reflects the size and nature of the investments being screened under the FATA. The increased penalty also ensures civil penalties for individuals proportionately align with the increase in civil penalties for bodies corporate, and act as a sufficient deterrent for misconduct.
In practice, it is intended that courts would use their discretion to impose an appropriate penalty. The penalties in the Bill are the maximums that a court can impose, taking into account the facts and circumstances of each case.
The method for calculating the applicable civil penalty provides flexibility which ensures that the penalty reflects the seriousness of the contravention and community expectations. It will ensure that incurring a civil penalty is not merely considered a cost of doing business, and that the penalty amount is appropriate to deter and address misconduct.
While the civil penalty amounts are intended to deter misconduct, none of the civil penalty provisions carry a penalty of imprisonment. The civil penalty provisions should not be considered ‘criminal’ for the purpose of human rights law due to their application in ensuring compliance with the FATA. Therefore, the civil penalty provisions do not create criminal offences for the purposes of articles 14 and 15 of the ICCPR.
Furthermore, the increased penalties for civil penalty provisions will apply to offences that are committed after the Bill commences and will apply prospectively, therefore upholding article 15 of the ICCPR.
2.60 As to whether the civil penalty provisions should be considered 'criminal' for the purposes of international human rights law, the Treasurer has advised that the purpose of increasing the maximum civil penalty amount is to act as a sufficient deterrent for misconduct. The Treasurer has noted that the penalties do not apply to the general public and are limited to persons or entities whose investments are screened under the FATA, noting that certain investments are not screened under the FATA unless the value of the investment exceeds $1.192 billion. The Treasurer has stated that such persons or entities should be aware of their obligations under the FATA. The Treasurer has explained that the increased penalty reflects the size and nature of the investment and is an appropriate amount to deter and address misconduct. Further, the Treasurer has noted that the penalties apply prospectively, and the courts would use their discretion to impose an appropriate penalty.
2.61 In assessing whether a civil penalty should be regarded as criminal, it is necessary to consider the domestic classification of the penalty; the nature of the penalty; and the severity of the penalty. The civil penalty provisions are classified as 'civil' not 'criminal', although this is not determinative. The penalties apply to persons or entities whose investments are screened under the FATA and would therefore appear to be restricted to a specific regulatory context rather than applying to the public at large. The penalties do not carry a term of imprisonment, although may impose a substantial pecuniary sanction. While these factors may support classifying the civil penalties as 'civil', there are also factors which indicate that the penalties could be regarded as 'criminal' for the purposes of international human rights law. In particular, the penalties are intended to deter misconduct and carry a substantial pecuniary sanction, including up to 2,500,000 penalty units ($555 million) for individuals. The severity of the pecuniary sanction raises concerns that the penalty may constitute a criminal sanction for the purposes of international human rights law.
2.62 As noted in the initial analysis, if the civil penalty provisions were considered to be 'criminal' for the purposes of international human rights law, this neither means that the relevant conduct must be turned into a criminal offence in domestic law nor that the civil penalty is illegitimate. Instead, it means that the civil penalty provisions in Schedule 2 must be shown to be consistent with the criminal process guarantees set out in articles 14 and 15 of the International Covenant on Civil and Political Rights, including the right to be presumed innocent until proven guilty according to law.[43] This right requires that the case against the person be demonstrated on the criminal standard of proof, that is, it must be proven beyond reasonable doubt. The standard of proof applicable in civil penalty proceedings is the civil standard of proof, requiring proof on the balance of probabilities. If the civil penalties in Schedule 2 were considered to be 'criminal', the lower standard of civil proof would appear to limit article 14. The Treasurer's response did not explain whether any such limit would be permissible under international human rights law. As such, it is not possible to conclude that these substantial civil penalties are compatible with the criminal process rights under the International Covenant on Civil and Political Rights.
2.63 The committee thanks the Treasurer for this response. The committee notes that Schedule 2 of the bill seeks to significantly increase penalties for contraventions of civil penalty provisions.
2.64 The committee considers that increasing the maximum penalty for contravening civil penalty provisions is an important measure to deter serious misconduct. The committee notes the Treasurer’s advice that the penalty amount is appropriate to ensure that incurring a civil penalty is not merely considered a cost of doing business. The committee considers that there are factors which suggest the civil penalty provisions would be considered 'civil' for the purposes of international human rights law, including their domestic classification, their application in a regulatory context and their imposition of a pecuniary sanction rather than a term of imprisonment. However, noting the purpose of the increased civil penalty is to deter misconduct and the potential pecuniary sanction is substantial, including up to 2,500,000 penalty units ($555 million) for individuals, there remains a risk that the penalties may be so severe as to amount to a criminal sanction under international human rights law. If the penalties were considered to be 'criminal', the committee notes that this does not mean the relevant conduct must be classified as a criminal offence or that the civil penalty is illegitimate. Rather, it must be shown that the provisions are consistent with the criminal process guarantees set out in article 14 the International Covenant on Civil and Political Rights. Without information in relation to this, it is not possible to conclude that these civil penalties are compatible with the criminal process rights under international human rights law.
2.65 The committee draws these human rights concerns to the attention of the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Foreign Investment Reform (Protecting Australia’s National Security) Bill 2020, Report 1 of 2021; [2021] AUPJCHR 8.
[3] Parliamentary Joint Committee on Human Rights, Report 14 of 2020 (25 November 2020),
pp. 2-17.
[4] Schedule 1, Part 1, item 205, proposed subsection 123B(1)(a).
[5] Foreign Acquisitions and Takeovers Act 1975, section 120; Privacy Act 1988, section 6; explanatory memorandum p. 58.
[6] Schedule 1, Part 1, item 205, proposed paragraphs 123B(1)(b)–(e) and subsection 123B(2).
[7] Schedule 1, Part 1, item 205, proposed subsection 123B(3).
[8] International Covenant on Civil and Political Rights, article 17. Every person should be able to ascertain which public authorities or private individuals or bodies control or may control their files and, if such files contain incorrect personal data or have been collected or processed contrary to legal provisions, every person should be able to request rectification or elimination: UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]. See also, General Comment No. 34 (Freedom of opinion and expression) (2011) [18].
[9] International Covenant on Civil and Political Rights, article 6. The right should not be understood in a restrictive manner: UN Human Rights Committee, General Comment No. 6: article 6 (right to life) (1982) [5].
[10] Second Optional Protocol to the International Covenant on Civil and Political Rights. In 2009, the United Nations Human Rights Committee stated its concern that Australia lacks 'a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state', and concluded that Australia should take steps to ensure it 'does not provide assistance in the investigation of crimes that may result in the imposition of the death penalty in another State': UN Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009) [20].
[11] International Covenant on Civil and Political Rights, article 7; and Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5. See also the prohibitions against torture under Australian domestic law, for example the Criminal Code Act 1995, Schedule 1, Division 274.
[12] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 4(2); UN Human Rights Committee, General Comment 20: Article 7 (1992) [3].
[13] The Treasurer's response to the committee's inquiries was received on 22 December 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[14] Schedule 1, item 205, proposed subsection 123B(1)(a).
[15] UN Human Rights Committee, General Comment No.36 on Article 6, on the right to life (2018) [34].
[16] Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.5].
[17] See Manfred Nowak, Report of the Special Rapporteur on the question of torture, 1st report to the Commission on Human Rights, E/CN.4/2006/6, 23 December 2005, [32]: 'diplomatic assurances with regard to torture are nothing but attempts to circumvent the absolute prohibition of torture and refoulement, and that rather than elaborating a legal instrument on minimum standards for the use of diplomatic assurances ... States [should be called on] to refrain from seeking and adopting such assurances with States with a proven record of torture'. See also Agiza v Sweden 2005, Committee Against Torture, CAT/C/34/D/233/2003, 20 May 2005, [13.4]; Saadi v Italy, European Court of Human Rights, Application no. 37201/06 (28 February 2008), [147]–[148].
[18] UN Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009) [20].
[19] Schedule 1, Part 1, item 132, proposed subsection 79R(1).
[20] Schedule 1, Part 1, item 132, proposed subsection 79R(3). Directions that can be made under proposed section 79R can be extended by regulations: explanatory memorandum, p. 108.
[21] Schedule 1, Part 1, item 132, proposed subsections 79R(7)(a)–(d). Proposed subsection 79R(7) sets out a non-exhaustive list of conduct to be engaged in as specified in the direction.
[22] Schedule 1, Part 1, item 132, proposed subsection 79R(7)(e).
[23] Schedule 1, Part 1, item 132, proposed section 79S. The Treasurer may decide to not publish a direction on a website maintained by the Department if it would be contrary to the national interest: proposed subsection 79S(2).
[24] Schedule 1, Part 1, item 158, proposed section 88A. Contravention of a direction or interim direction is a civil penalty provision where the provision to which the relevant contravention relates is a civil penalty provision: Schedule 2, item 16, proposed section 98A. See also explanatory memorandum, p. 112. The civil penalty provisions in the bill are discussed in further detail below at paragraph [2.53]-[2.55].
[25] International Covenant on Economic, Social and Cultural Rights, articles 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].
[26] International Covenant on Economic, Social and Cultural Rights, articles 6 and 2(1).
[27] See for example Schedule 1, Part 1, item 132, proposed paragraphs79R(7)(c)–(e).
[28] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[29] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[30] D.H. and Others v the Czech Republic, European Court of Human Rights (Grand Chamber), Application no. 57325/00 (2007) [49]; Hoogendijk v the Netherlands, European Court of Human Rights, Application no. 58641/00 (2005).
[31] International Covenant on Civil and Political Rights, article 17 and UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]–[4].
[32] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [5].
[33] International Covenant on Civil and Political Rights, article 17.
[34] The Treasurer's response to the committee's inquiries was received on 22 December 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[35] Hasan and Chaush v Bulgaria, European Court of Human Rights App No.30985/96 (2000) [84].
[36] In exercising the power, the Treasurer may be guided by a non-exhaustive list of directions in subsection 79R(7) as well as any directions prescribed in regulations: Schedule 1, Part 1, item 132, Division 5, proposed subsections 79R(3) and (7).
[37] Schedule 2, Part 1, item 16, proposed section 98A. A penalty unit is $222: Crimes Act 1914, subsection 4AA(1A) and Notice of Indexation of the Penalty Unit Amount 2020.
[38] Schedule 2, Part 1, item 16, proposed section 98B. Subsection 3 provides that the maximum penalty for contravention of section 98B is the lesser of the following: 2,500,000 penalty units or the greater of the following: 5,000 penalty units or the sum of the amounts worked out under section 98F.
[39] Schedule 2, Part 1, item 16, proposed subsection 98B(7).
[40] Schedule 2, Part 1, item 14, proposed section 93.
[41] International Covenant on Civil and Political Rights, article 14(2).
[42] The Treasurer's response to the committee's inquiries was received on 22 December 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[43] It is noted that the civil penalties apply prospectively and thus do not engage article 15 of the International Covenant on Civil and Political Rights.
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