Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 - Concluded Matters [2023] AUPJCHR 89 (6 September 2023)

1.83 The committee comments on the following bill and legislative instruments, and in some instances, seeks a response or further information from the relevant minister.

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

1.84 Correspondence relating to these matters is available on the committee's website.^[1]

Purpose	This bill seeks to amend the Biosecurity Act 2015 to: provide for greater access to information related to the biosecurity risk of travellers; alter provisions relating to approved arrangements; increase certain civil penalties; and create strict liability offences.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives, 21 June 2023
Rights	Privacy, equality and non-discrimination, criminal process rights

1.85 The committee requested a response from the minister in relation to the bill in Report 8 of 2023.^[3]

1.86 Schedule 1 of the bill (now Act) amends section 196 of the Biosecurity Act 2015 (Biosecurity Act) to alter the Director of Biosecurity's (director's) existing power to require a person on an incoming aircraft or vessel to provide information to assess the biosecurity risk associated with them or goods in their possession. Item 7 provides that the director may require a person or class of persons to produce a travel document (including a passport) to either asses their level of biosecurity risk or that of a good they possess, or for future profiling or assessment of biosecurity risks.^[4]

1.87 Previously, the director could only require the provision of information from an individual person, including by answering questions, and so the requirement to produce information could only occur in a one-to-one interaction between a biosecurity officer and an individual.^[5] The explanatory memorandum states that the amendments allow the director to require information from classes of persons, for example by requiring each person on a particular flight or a vessel originating from a place, that has high biosecurity risk associated with it at a particular point in time, to provide specified information.^[6]

1.88 The director is now empowered to scan relevant documents (such as passports) for either assessing biosecurity risk or for future profiling or assessment of biosecurity risks, and collect and retain personal information. Failure to comply with the requirement to produce a document is a civil penalty punishable by up to 120 penalty units (currently $37,560).^[7] The explanatory memorandum states that, having scanned a travel document, a biosecurity officer could then access information from the Department of Agriculture, Fisheries and Forestry's systems about the individual which is relevant to their risk profile from a biosecurity perspective.^[8]

Rights to privacy and equality and non-discrimination

1.89 Enabling the director to require the provision of travel documents for a class of persons, and to use those documents to obtain information from the department relating to their biosecurity risk, engages and limits the right to privacy.^[9]

1.90 The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[10] It also includes the right to control the dissemination of information about one's private life. 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.

1.91 The statement of compatibility also states that this measure engages the right to equality and non-discrimination (although it does not specify exactly how).^[11] The explanatory memorandum states that the bill would allow the director to include each person on a flight or a vessel (including a cruise ship) in a class.^[12] It would appear that, depending on the vessel (or series of vessels) in question and where the vessel is originating from, this may have a disproportionate impact on passengers of a particular race, or national origin. The right to equality and non-discrimination 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.^[13] It prohibits discrimination on several bases including race, national or social origin, and nationality. 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).^[14]Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate' exclusively or disproportionately affects people with a particular protected attribute.^[15]

1.92 If the measure may have an indirectly discriminatory impact in practice, it is necessary to consider whether any differential treatment would be permissible under international human rights law. Where a measure impacts on a particular group disproportionately, it establishes prima facie that there may be indirect discrimination.^[16] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.^[17]

1.93 The committee considered further information was required to assess the compatibility of this measure with the rights to privacy and equality and non-discrimination. It sought the minister's advice in relation to seven questions as set out in the minister's response below.

The proposed subsection 196(3A) would enable the Director of Biosecurity (the Director), or a delegate (for example, a biosecurity officer), the power to require a person who intends to enter, or enters, Australian territory on an incoming aircraft or vessel, to produce their passport or travel document(s) to the Director. The Director may then scan that person’s passport or travel document for the purpose of assessing the level of biosecurity risk associated with the person and any goods the person has brought with them into Australian territory, as well as for future profiling, or assessment of, biosecurity risks.

The Department of Agriculture, Fisheries and Forestry (the department) uses data to develop profiles of passengers who may carry a higher risk of non-compliance, to enable biosecurity officers to identify such passengers for screening. This is a legitimate purpose as it is intended to protect Australia, its plant and animal health, its economy and environment. The purposes for which this information is collected and used are reasonable, necessary and proportionate for the legitimate objective of protecting Australia’s unique biosecurity status. The information collected and used to develop profiles to manage biosecurity would be based on an assessment of objective information (e.g. prior imports and non-compliance by persons of particular nationalities). This would only be used to intercept, question and search passengers on the basis of objective evidence of their nationality through their passport or travel documents. This would allow the department to build better profiles which identify travellers who are more likely to be carrying goods in contravention of import conditions, reducing inspections of compliant travellers.

The proposed amendments are intended to ensure that the data collected in relation to biosecurity interventions with all incoming travellers can be consistently recorded and analysed to support a more intelligence and evidence-based approach to predicting and managing the biosecurity risk posed by future traveller cohorts. As such, the requirement to provide a passport or other travel document to a biosecurity officer upon request will necessarily apply to all persons, regardless of their ethnicity or national or social origin.

The personal information to be collected from the production or scanning of a person’s passport or travel document under proposed subsection 196(3A) may include a person’s name, place of birth, date of birth, date of issuance, date of expiry, document number, photo and signature. It is intended that some or all of this personal information may be used.

The personal information collected under proposed subsection 196(3A) will be considered ‘relevant information’, defined under section 9 of the Act as information that has been obtained or generated by a person in the course of, or for the purposes of, performing functions, duties or exercising powers under the Biosecurity Act, or assisting another person to do so. This information will therefore be subject to the information management provisions set out in Division 3 of Part 2 of Chapter 11 of the Biosecurity Act. Each provision in Division 3 provides an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws.

Proposed subsection 196(3A) will not enable the collection of any additional personal information beyond the personal information contained within a passport and travel document. The collection of any sensitive information as defined in section 6 of the Privacy Act is protected information under the Biosecurity Act and an offence or civil penalty may apply if the protected information is used or disclosed and no exception applies.

Section 196 of the Biosecurity Act currently enables the Director to require a person who intends to enter, or enters, Australian territory on an incoming aircraft or vessel, and is included in a prescribed class of persons, to provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods the person has with them. This information may include the details that a person includes in their incoming passenger card (IPC), some of which may be the same information from a person’s travel document. Section 53 of the Biosecurity Regulation 2016 provides that, for paragraph 196(1)(b) of the Biosecurity Act, persons who were, are or will be passengers on an incoming aircraft or vessel, members of the crew of an incoming aircraft or vessel or the person in charge of an incoming aircraft or vessel are prescribed.

Subsection 196(3A) of the Bill is intended to extend this authority to enable the Director to require information from each person included in a class of persons, as opposed to on an individual to individual basis.

By way of example, these proposed measures would allow the Director to include each person on a particular flight or a vessel originating from a place that has high biosecurity risk associated with it at a particular point in time, in a class of persons, and then to require every person in that class to provide information so the Director can assess the level of biosecurity risk associated with them and the goods they have with them, rather than having to require the provision of information from each person individually.

The flexibility to be able to require classes of persons to provide information for the purpose of assessing biosecurity risk, rather than just individuals, would be a significant and important addition to the current options used by biosecurity officers at the border to assess biosecurity risk, and where appropriate, manage any risk arising. These proposed amendments would allow for the more efficient and effective management of biosecurity risk in order to protect Australia’s economy, environment, flora and fauna, and the agricultural sector from diseases and pests which could have a devastating effect should they enter Australian territory.

The technology used by the department to scan a person’s passport relies on optical character recognition technology that reads the machine-readable zone at the bottom of the passport’s biographical data page. This page contains some information that is not already provided by an incoming traveller on their IPC such as the date of issuance and the date of expiry of a passport. As such, the exercise of power under proposed subsection 196(3A) will in effect result in the department collecting more information about individuals.

The purpose of exercising the power under proposed subsection 196(3A) is to enable the collection of required information from a broader portion of the traveller cohort to support the analysis and management of biosecurity risks associated with incoming travellers and their goods. Further, the information to be collected under the proposed amendments will improve the effectiveness and efficiency of biosecurity screening activities at the Australian border and place a focus on high-risk entities.

Information relating to a person’s last port of departure before arriving in Australia is already collected and used as part of a person’s IPC.

The department currently collects and analyses data in relation to biosecurity interventions that are undertaken in response to travellers who demonstrate non-compliance with biosecurity requirements at the Australian border. The analysis of this data is used to inform the development of traveller cohort profiles which enhance the prediction and management of the biosecurity risks posed by future traveller cohorts, as well as to modify and enhance biosecurity screening activities, at international airports and ports. These traveller cohort profiles are developed in collaboration with the Centre of Excellence for Biosecurity Risk Analysis.

The data is used to determine the likelihood that a cohort of travellers will fail to declare high biosecurity risk goods and prioritise these cohorts for biosecurity intervention. However, this involves the use of complex statistical processes to account for a lack of data for travellers who undergo biosecurity screening but are found to be compliant with biosecurity requirements, which is not currently incorporated into the datasets that are used to build the cohort profiles. The proposed amendments are intended to enable the department to obtain information from all travellers, instead of just those provided voluntarily or in relation to those who demonstrate non-compliance with biosecurity requirements, for the development of a reliable and complete dataset.

Any personal information collected in accordance with proposed subsection 196(3A) will only be disclosed if authorised under the Biosecurity Act.

The information management provisions are set out in Division 3 of Part 2 of Chapter 11 of the Biosecurity Act. Each provision in Division 3 provides an authorisation for the purposes of the Privacy Act and other laws. This includes, but is not limited to, disclosure to a Commonwealth entity or a law enforcement body.

The management of information and records is governed by a number of legislative requirements, international standards and guidance from the National Archives of Australia (NAA). The department has worked with the NAA to develop specific records authorities to cover the department’s core business functions including assessing and managing biosecurity risks.

The collection and retention of travel documents for the purposes of section 196(3A) is intended to be managed in accordance with the department’s relevant record authority. The information intended to be obtained in accordance with proposed subsection 196(3A) will be collated into an intervention record which is then retained for 12 years in line with the BIOSECURITY – Quarantine Clearance – Assessment record Authority (Record Authority and Disposal Class: 61242).

1.96 To determine whether the measure limits the right to equality and non-discrimination, further information was sought as to whether the changes in the bill (now Act) may disproportionately impact people based on their ethnicity or national or social origin in practice. Relatedly, further information was also sought as to the meaning of 'the future profiling, or future assessment, of biosecurity risks'. The minister stated that the department currently collects and analyses data in relation to biosecurity interventions that are undertaken in response to travellers who demonstrate non-compliance with biosecurity requirements at the Australian border, and that the analysis of this data is used to 'inform the development of traveller cohort profiles which enhance the prediction and management of the biosecurity risks posed by future traveller cohorts, as well as to modify and enhance biosecurity screening activities'. However, the minister advised that this currently involves the use of complex statistical processes to account for a lack of data for travellers who undergo biosecurity screening but are found to be compliant with biosecurity requirements, which is not currently incorporated into the datasets that are used to build the cohort profiles. The minister stated that the amendments are intended to enable the department to obtain information from all travellers, not merely information provided voluntarily or in relation to those who demonstrate non-compliance with biosecurity requirements, for the development of a reliable and complete dataset. That is, the requirement to provide a passport or other travel document to a biosecurity officer on request would apply to all persons, regardless of their ethnicity or national or social origin.

1.97 In terms of how that data would be used, the minister advised that the department uses data it collects to develop profiles of passengers who may carry a higher risk of non-compliance, for example prior non-compliance by persons of particular nationalities. The minister stated that this would be used to 'intercept, question and search passengers on the basis of objective evidence of their nationality'. Consequently, while all affected persons would be required to provide their travel document, the intended purpose of the power is to develop profiles of travellers who may be considered to be at greater risk of non-compliance with Australia's biosecurity requirements—including on the basis of their nationality—and to target biosecurity inspections towards travellers based on that characteristic, not merely based on an individual's own history of compliance.

1.98 It would appear, therefore, that one intended use of this power is to facilitate differential treatment towards travellers based on nationality. For example, if the use of this power produces data indicating that there is a general trend of travellers from Indonesia being more likely to have prohibited biosecurity items in their luggage, the intended result would appear to be that all Indonesian nationals may be intercepted, questioned, and searched on entry into Australia solely because of their nationality. Further, depending on the nationality in question, it may be that in practice the effect of the measure therefore disproportionately impacts on persons from certain ethnicities more than others. Differential treatment will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. However, retaining the data of travellers regardless of their history of compliance in order to obtain more data to obtain statistical trends with respect to risks of biosecurity non-compliance would not appear to constitute reasonable and objective criteria such that this would constitute lawful discrimination, and so justify differential treatment. Consequently, the intended purpose behind the use of this power would appear to constitute unlawful non-discrimination, and so be impermissible under international human rights law.

1.99 This measure also engages and limits the right to privacy. As set out in the initial analysis, better managing biosecurity risks, in order to protect Australia’s economy, environment, flora and fauna, and the agricultural sector from diseases and pests, constitutes a legitimate objective for the purposes of international human rights law, and the proposed measures would appear to be rationally connected to that objective. A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought.

1.100 As to what personal information would be visible to a biosecurity worker or other officer who has scanned a person's travel document, the minister advised that the personal information to be collected from the production or scanning of a person’s passport or travel document may include a person’s name, place of birth, date of birth, date of issuance, date of expiry, document number, photo and signature (that is, personal details associated with a passport). The minister stated that proposed subsection 196(3A) would not enable the collection of any additional personal information beyond the personal information contained within a passport and travel document. Rather, scanning a person's travel document pursuant to this power would establish a mechanism by which the information already being collected by the department in relation to compliance with biosecurity measures would be associated with individual persons, and by reference to the types of personal information associated with passports to identify trends (e.g. nationality). However, the minister advised that the technology used to scan a person’s passport relies on optical character recognition technology that reads the machine-readable zone at the bottom of the passport’s biographical data page, which contains some information that is not already provided by an incoming traveller on their incoming passenger card such as the date of issuance and the date of expiry of a passport. As such, the exercise of this power will result in the department collecting more information about individuals.

1.101 Further, applying the measure to classes of persons (not specified individuals who raise concerns regarding non-compliance with biosecurity requirements) will greatly increase the number of people required to provide this information. While assessing the level of risk associated with an individual would appear to be a constrained purpose, the future profiling, or future assessment, of biosecurity risks would appear to be broader (noting that such risks do not appear to relate to the individual traveller in question). It does not appear that expanding the dataset, in order to obtain better travel profiles, is sufficiently circumscribed such as to constitute a proportionate limit on the right to privacy.

1.102 In terms of to whom information obtained under this measure may be disclosed, the minister advised that any personal information collected could be disclosed where authorised by the Act. The committee has raised broader concerns regarding the proportionality of the information management framework to which the minister has referred.^[19] In particular, sections 582, 583 and 586 of the Biosecurity Act authorise the disclosure of relevant information for specified purposes without limiting to whom any such disclosures may be made. Limiting the persons who are authorised to disclose relevant information and the purposes for which information may be disclosed, has the effect of limiting the persons to whom information may be disclosed. However, as the text of the legislation does not itself limit to whom information may be disclosed, the extent of the potential limit on privacy is not clear. There is a risk that the safeguards in the Biosecurity Act may not be adequate in all circumstances so as to ensure that any limitation on the right to privacy will be proportionate in practice.

1.103 As to how long information obtained under this proposed power would be held, and whether this would be subject to a legislative limitation, the minister advised that the information would be collated into an 'intervention record' which would be retained for 12 years. It is not clear why the personal travel information of all travellers – including those who have no history of non-compliance with the Biosecurity Act, needs to be retained for 12 years.

1.104 The committee thanks the minister for this response. The committee considers that enabling the director to require cases of persons to produce travel documents to assess their level of biosecurity risk or for future profiling of biosecurity risk engages and limits the rights to privacy and non-discrimination. The committee notes that the right to privacy may be limited if it reasonable, necessary and proportionate to do so, and that differential treatment will not constitute unlawful treatment if it is based on reasonable and objective criteria.

1.105 The committee is concerned that requiring classes of persons to produce their passports in order for the department to build better profiles of travellers who are more likely to be carrying goods in contravention of import conditions, will lead to travellers being targeted for questioning based on their nationality. The committee does not consider the justification of the need to build a profiling database of personal information to be based on reasonable and objective criteria and, as such, considers the measure is unlikely to be compatible with the right to equality and non-discrimination.

1.106 The committee is also concerned that the measure is not a proportionate limit on the right to privacy, particularly because it is not appropriately circumscribed, does not contain sufficient safeguards, and that the retention of the data for 12 years is disproportionate.

Suggested action

1.107 The committee considers the proportionality of this measure may be assisted were the Act amended:

(a) to remove the ability for the Director of Biosecurity to require classes of person to produce travel documents for the purpose of future profiling or assessments of biosecurity risks;^[20]

(b) require any personal information obtained following the production or scanning of documents to be destroyed after a reasonable timeframe where the relevant individual does not have a history of biosecurity non-compliance.

1.108 The committee recommends that the statement of compatibility be updated to reflect the information provided by the minister.

1.109 The committee draws these human rights concerns to the attention of the minister and the Parliament.

1.110 Schedule 3 of the bill (now Act) seeks to significantly increase a number of civil penalties that apply in the Biosecurity Act, some by up to 900 per cent. For example, the maximum penalty for failure to comply with an entry or exit requirement in section 44 of the Biosecurity Act has increased from 30 penalty units (currently $9,390) to 150 penalty units (currently $46,950).^[21] The maximum penalty for failure to comply with a requirement of a human health response zone determination has increased from 30 to 120 penalty units (currently $37,650).^[22] Further, the maximum penalties for providing false or misleading information or documents in purported compliance with the Act, or to a biosecurity industry participant, have increased to 600 penalty units (currently $187,800).^[23] Previously, the maximum penalties for these breaches ranged from 60 penalty units (currently $18,780) to 120 penalty units.

Criminal process rights

1.111 The significant increase in civil penalties raises the risk that these penalties may be considered criminal in nature under international human rights law.

1.112 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 penalties 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.

1.113 Noting that some of these civil penalty provisions would apply to the general public (and not only those operating in a regulatory context), that the penalty is intended to deter certain conduct and that the increased penalty may now be considered sufficiently severe, there is a risk that some of these penalties may be considered to be criminal penalties for the purposes of international human rights law. As such, such provisions must be shown to be consistent with international human rights law criminal process guarantees, including the right not to be tried twice for the same offence,^[24] and the right to be presumed innocent until proven guilty according to law.^[25] However, civil penalty provisions, which require proof of the conduct on the balance of probabilities, do not meet the guarantee that a person be proved guilty beyond all reasonable doubt.

1.114 The committee considered that, as this bill would significantly increase the maximum civil penalty for several provisions which would be applicable to members of the public, and noting that the intention is for these penalties to act as deterrents, there is a risk that these provisions may be regarded as criminal under international human rights law, and so not comply with the criminal process rights under international human rights law. In this regard, the committee noted that it has raised concerns regarding the compatibility of existing civil penalty provisions with criminal process rights on numerous occasions, including due to their potential severity.^[26]

As discussed in the Statement of Compatibility with Human Rights, civil penalty provisions may engage criminal process rights under Article 14 of the ICCPR regardless of the distinction between criminal and civil penalties in domestic law. Having regard to the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties and the severity of the penalties, the increase to the civil penalties in this Bill should not be regarded as elevating the civil penalties to be criminal in nature.

The Bill only seeks to increase the applicable civil penalties under the Act to reflect the seriousness of the non-compliance with Australia’s biosecurity laws and the impact the contraventions may have on Australia’s biosecurity status, market access and economy. This is necessary as the current penalty regime no longer serves as an effective deterrent against non-compliance.

The proposed increases to the civil penalty provisions are proportionate and appropriate in the regulatory context of the Act, to reflect the seriousness of contraventions, and the corresponding need for deterrence. Contraventions of the provisions proposed to be amended may have significant impacts on Australia’s agriculture industry.

For example, the increased maximum penalty of 1,000 penalty units in subsection 46(2) of the Act for contravention of exit requirements by the operator of an aircraft or vessel reflects the serious consequences posed by the potential spread and transmission out of Australian territory of a listed human disease, and reflects that a lower penalty may not be a proportionate deterrent to non-compliance in the commercial context to which exit requirements apply.

On balance, in the context of this regulatory regime for industry participants, the penalties should not be considered severe, noting:

The current penalties are insufficient to effectively deter non-compliance with the Act. In the context of the commercial profits that can be made from the importation of goods in contravention of Australia’s biosecurity framework, the increased penalties are a proportionate measure to deter non-compliance.

In civil proceedings, the standard of proof required is ‘on the balance of probabilities’. This means that, for a person to be found liable, a contravention of a civil penalty provision must be proven on the balance of probabilities. The higher standard of proof of ‘beyond reasonable doubt’ is required in criminal proceedings, but this is because a finding of guilt in criminal proceedings may result in a conviction being recorded on a person’s criminal record and may also result in a period of imprisonment being imposed.

As explained above, while the Bill increases the maximum civil penalties for some civil penalty provisions, there is no criminal conviction recorded and there is no period of imprisonment imposed for any contraventions of those civil penalty provisions. As such, I do not consider that it is necessary to apply a higher standard of proof in civil penalty proceedings that relate to provisions of the Biosecurity Act that are proposed to be amended by this Bill.

1.116 The committee reiterates that civil penalties (as applicable to individuals) may be regarded as 'criminal' for the purposes of international human rights law, if they meet certain criteria, including if they apply to the general public and because of their potential severity. The committee notes that, where this is the case, these penalties must be shown to be consistent with criminal process guarantees, including the right to be presumed innocent until proven guilty according to law, which requires that the case against the person be demonstrated on the criminal standard of proof of beyond reasonable doubt (not the lower civil standard of on the balance of probabilities).

1.117 The committee notes the minister's advice that the civil penalties, for the most part, apply in a corporate context. In relation to individuals such as commercial importers and biosecurity industry participants, it is likely that the penalties apply in a sufficiently regulatory context to ensure the penalty is more likely to be considered to be civil in nature under international human rights law. However, there are provisions which have been significantly increased that apply to the public at large. As such, in relation to these provisions, noting that the penalties are intended to act as deterrents, there is a risk these provisions may be regarded as criminal for the purposes of international human rights law. In this regard, the application of the civil standard of proof would be unlikely to be compatible with the right to a fair trial.

1.118 The committee draws its human rights concerns to the attention of the minister and the Parliament.

^[3] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 13-21.

^[4] Schedule 1, item 7, proposed subsection 196(3A). 'Biosecurity risk' is defined in section 9 of the Biosecurity Act 2015 to mean the likelihood of a disease or pest entering Australian territory or establishing itself or spreading in Australia, and the potential for it to cause harm to: human, animal or plant health or the environment; or economic consequences associated with its entry, establishment or spread.

^[7] As of 1 July 2023, the value of one penalty unit increased to $313, in accordance with subsection 4AA(3) of the Crimes Act 1914, which provides for indexation of penalty units.

^[9] In seeking to reduce the risk of diseases spreading into Australia, the bill may also promote the right to health. This is noted in the statement of compatibility, pp. 94-95.

^[13] 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.

^[14] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).

^[15] Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'. See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3^rd edition, Oxford University Press, Oxford, 2013, [23.39].

^[16] 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).

^[17] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].

^[18] The minister's response to the committee's inquiries was received on 17 August 2023. This is an extract of the response. The response is available in full on the committee's webpage.

^[20] Schedule 1, item 7, proposed subparagraph 196(3A)(a)(ii).

^[21] Schedule 3, items 1 and 3, section 46.

^[22] Schedule 3, item 6, section 116.

^[23] Schedule 3, items 7-8, sections 438, 439, 532 and 533.

^[24] International Covenant on Civil and Political Rights, article 14(7).

^[25] International Covenant on Civil and Political Rights, article 14(2).

^[26] See, relevantly, Biosecurity Amendment (Strengthening Penalties) Bill 2021 in Report 2 of 2021 (24 February 2021) (initial consideration of the bill), and Report 4 of 2021 (31 March 2021) (concluding advice on the bill).

^[27] The minister's response to the committee's inquiries was received on 17 August 2023. This is an extract of the response. The response is available in full on the committee's webpage.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2023/89.html

Australian Parliamentary Joint Committee on Human Rights

Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 - Concluded Matters [2023] AUPJCHR 89 (6 September 2023)

Rights to privacy and equality and non-discrimination

Criminal process rights