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Australian Parliamentary Joint Committee on Human Rights |
In this report the committee has examined the following bills and legislative instruments for compatibility with human rights. The committee's full consideration of legislation commented on in the report is set out in Chapters 1 and 2.
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Chapter 1: New and continuing matters
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Bills introduced 12 August to 22 August 2024
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18
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Bills commented on in
report[2]
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3
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Private members or senators' bills that may engage and limit human
rights
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4
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Chapter 2: Concluded
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Bills committee has concluded its examination of following receipt of
ministerial response
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0
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No comment
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No comment
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Seeking Information
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Expanding the unique student identifier scheme
Rights of the child and rights to privacy and education
This bill seeks to extend the Unique Student Identifier scheme to all
Australian primary and secondary school students by enabling
the assignment of a
schools identifier to each student. A schools identifier would be a unique
education number that may later be
used as a ‘student identifier’
for the purposes of higher education. By authorising the verification,
collection, use
and disclosure of schools identifiers and school identity
management information (which would include personal information), the
measures
would engage and limit the right to privacy. As the measures would apply to
primary and secondary school children, the rights
of the child would also be
engaged and limited, including the rights of children to have their best
interests taken into account
as a primary consideration in all actions
concerning them and to freely express their views in all matters affecting them.
If the
measures had the effect of restricting access to primary or secondary
education for students without a schools identifier, the right
to education may
also be engaged and limited.
The committee notes that it is not clear whether the stated objectives of
the measures would constitute legitimate objectives for
the purposes of
international human rights law or whether the proposed limitations on rights
would be proportionate. As such, the
committee considers further information is
required to assess the compatibility of these measures with the right to
privacy, the
rights of the child and the right to education, and is seeking the
minister's advice in regard to these matters.
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No comment
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The committee notes that this non-government bill appears to engage and may
limit human rights. Should this bill proceed to further
stages of debate, the
committee may request further information from the legislation proponent as to
the human rights compatibility
of the bill.
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The committee notes that this non-government bill appears to engage and may
limit human rights. Should this bill proceed to further
stages of debate, the
committee may request further information from the legislation proponent as to
the human rights compatibility
of the bill.
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Fair Work (Registered Organisations) Amendment (Administration) Bill
2024
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The committee has deferred consideration of this bill.
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Fair Work (Registered Organisations) Amendment (Removing Criminals from
Worksites) Bill 2024
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The committee notes that this non-government bill appears to engage and may
limit human rights. Should this bill proceed to further
stages of debate, the
committee may request further information from the legislation proponent as to
the human rights compatibility
of the bill.
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Fair Work (Registered Organisations) Amendment (Removing Criminals from
Worksites) Bill 2024 (No. 2)
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The committee notes that this non-government bill appears to engage and may
limit human rights. Should this bill proceed to further
stages of debate, the
committee may request further information from the legislation proponent as to
the human rights compatibility
of the bill.
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Seeking Information
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Use and disclosure of safety-related information by Children's Contact
Services
Right to privacy
Schedule 2 to the bill seeks to amend Part II of the Family Law
Act 1975 to provide for the accreditation and regulation of
existing services referred to as ‘Children’s Contact
Services’,
which facilitate contact between a child and a member of the
child’s family with whom the child is not living, and where members
of the
family may not be able to safely manage such contact. The bill would regulate
the use and disclosure of certain 'safety-related
information' by such services.
This engages and limits the right to privacy. The committee is seeking
further information from the
Attorney-General in order to assess the
compatibility of the measure with the right to privacy.
Immunity from civil and criminal liability
Right to effective remedy
Schedule 2 of the bill would extend an existing power in the Family Law
Act 1975, to enable accreditation rules to be made in relation to Child
Contact Services. It also seeks to insert an immunity to exclude the
Commonwealth from all civil and criminal liability in relation to any act done,
or omitted to be done, in good faith in the performance
or exercise, or the
purported performance or exercise, of a function, power or authority conferred
by the accreditation rules. This
engages the right to an effective remedy, which
the statement of compatibility does not identify. The committee is seeking
further
information from the Attorney-General in order to asses the
compatibility of this measure.
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No comment
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Migration Amendment (Limits on Immigration Detention) Bill
2024
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No comment
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Advice to Parliament
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Requiring provision of information about overseas organ
transplants
Right to privacy
This private Senator's bill was introduced into the Senate on 22 June 2023
and passed the Senate on 21 August 2024. It seeks to amend
the Migration Act
1958 to require a person entering Australia to answer questions on their
passenger card about whether they have received an organ transplant
outside
Australia in the five years prior, and if so to provide further
information.
This engages and limits the right to privacy, which the statement of
compatibility does not identify. The committee considers that
it is unclear
whether and how the bill would be effective to achieve its stated objective, or
a proportionate means of achieving
it, and as such considers that it is not
clear that the bill would constitute a permissible limit on the right to
privacy. The committee
draws these human rights concerns to the attention
of the legislation proponent and the Parliament, and makes no further
comment.
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National Health Amendment (Technical Changes to Averaging Price
Disclosure Threshold and Other Matters) Bill 2024
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No comment
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Paid Parental Leave Amendment (Adding Superannuation for a More Secure
Retirement) Bill 2024
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No comment
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Parliamentary Workplace Support Service Amendment (Independent
Parliamentary Standards Commission) Bill 2024
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No comment
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Public Service Amendment Bill (No. 2) 2024
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The committee notes that this bill (now Act), in providing for the
collection, use and generation of information that may include
personal
information, engages and appears to limit the right to privacy, which was
not identified in the statement of compatibility
accompanying this bill. The
committee also notes that the statement of compatibility incorrectly states that
the bill engages the
right to equality before the law. The committee has
authorised its secretariat to notify departments where statements of
compatibility
appear to be inadequate. As such, the committee’s
secretariat has written to the department in relation to this matter.
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No comment
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Chapter 1: New and continuing matters
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Legislative instruments registered on the Federal
Register of Legislation
between 6 July to 19 August
2024[3]
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141
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Legislative instruments commented on in
report[4]
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0
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Chapter 2: Concluded
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Legislative instruments committee has concluded its examination
of following receipt of ministerial response
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1
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National Disability Insurance Scheme (NDIS Worker Screening Law)
Amendment Determination 2024
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The committee notes that this legislative instrument, which prescribes a
Queensland state law for the purposes of sharing private
information, engages
and limits the right to privacy. The statement of compatibility did not
provide a detailed outline of the privacy
framework provided for in the
Queensland law. While this privacy framework would provide for the protection of
private information,
without the full detail of the content of the Queensland
law set out in the statement of compatibility, the extent of that protection
is
not clear. The committee has authorised its secretariat to notify departments
where statements of compatibility appear to be inadequate.
As such, the
committee’s secretariat has written to the department in relation to this
matter.
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Defence (Afghanistan Inquiry Compensation Scheme) Regulations
2024
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The committee notes that this legislative instrument provides a
mechanism to pay compensation to (or take other action in relation
to)
family members of victims of unlawful killing, and individuals who have suffered
an unlawful assault or property damage, as established
by the Afghanistan
Inquiry. The committee notes that this engages the right to an effective
remedy in relation to violations of the
right to life and the right not to be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The committee’s
secretariat wrote to the department to seek more
information about the right to an effective remedy, the availability of other
compensation
and redress mechanisms, and has suggested that the statement of
compatibility be updated.
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National Health (Privacy) Rules 2025
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This instrument remakes the National Health (Privacy) Rules 2021 concerning
the handling by agencies of an individual's claims information
under the
Medicare Benefits Program and the Pharmaceutical Benefits Program. By providing
for the linking and disclosure of sensitive
personal health information in
specified circumstances, the instrument engages and limits the right to privacy.
The committee commented
on a previous iteration of this instrument, the National
Health (Privacy) Rules 2018, in Report
13 of 2018 and Report
1 of 2019. The committee concluded that the measure may be compatible
with the right to privacy but that further information would be of assistance.
In relation to this instrument, the committee notes that additional privacy
safeguards have been introduced, and that further information
has been provided
in the statement of compatibility.
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Work Health and Safety (Operation Sovereign Borders) Declaration
2024
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Advice to Parliament
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Disapplication of work health and safety provisions
Just and favourable conditions of work, life and security of the
person
This legislative instrument declares that certain provisions of the Work
Health and Safety Act 2011 do not apply to specified activities undertaken
under Operation Sovereign Borders (boat interceptions and turn-backs). This
engages
and may limit the right to just and favourable conditions of work for
those employed to carry out Operation Sovereign Borders, and
as the activities
specified would involve circumstances in which people on boats who are suspected
of not having a valid Australian
visa may be intercepted and turned back, it may
also engage the right to life and security of the person, if the turn-back of
boats
occurs in circumstances that are unsafe.
The committee considers that it remains unclear why it is necessary to
disapply these specified duties, and whether the other legal
and regulatory
frameworks identified by the minister serve as sufficient safeguards. The
committee considers that there is a risk
that this legislative instrument does
not constitute a permissible limit on the rights to life, security of the
person, and to just
and favourable conditions of work in practice. The committee
has recommended that the statement of compatibility be updated to reflected
the
engagement of the rights to life and security of the person, and draws its
concerns to the attention of the minister and the
Parliament.
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Instruments imposing sanctions on
individuals[5]
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A legislative instrument imposes sanctions on individuals. The committee
has considered the human rights compatibility of similar
instruments on a number
of occasions, and retains scrutiny concerns about the compatibility of the
sanctions regime with human rights.[6]
However, as these legislative instruments do not appear to designate or declare
any individuals who are currently within Australia's
jurisdiction, the committee
makes no comment in relation to these instruments at this stage.
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[1] This section can be cited as Parliamentary Joint Committee on Human Rights, Report snapshot, Report 8 of 2024; [2024] AUPJCHR 56.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2024/56.html