Parliamentary Joint Committee on Human Rights

<strong>Parliamentary</strong> <strong>Joint</strong> <strong>Committee</strong> 

on Human Rights 

Examination of legislation in accordance with the 

Human Rights (<strong>Parliamentary</strong> Scrutiny) Act 2011 

Bills introduced 12 – 14 March 2013 

Select Legislative Instruments registered with the 

Federal Register of Legislative Instruments 

17 – 20 December 2012 

Fourth Report of 2013 

March 2013

© Commonwealth of Australia 2013 

ISBN 987-1-74229-794-1 

This document was prepared by the <strong>Parliamentary</strong> <strong>Joint</strong> <strong>Committee</strong> on Human Rights 

and printed by the Senate Printing Unit, Department of the Senate, Parliament House, 

Canberra. 

ii

Members 

Membership of the committee 

Mr Harry Jenkins MP, Chair Scullin, Victoria, ALP 

Mr Ken Wyatt AM MP, Deputy Chair Hasluck, Western Australia, LP 

Mr Graham Perrett MP Moreton, Queensland, ALP 

Senator Anne Ruston South Australia, LP 

Senator Dean Smith Western Australia, LP 

Senator the Hon. Ursula Stephens New South Wales, ALP 

Mr Dan Tehan MP Wannon, Victoria, LP 

Senator Matt Thistlethwaite New South Wales, ALP 

Senator Penny Wright South Australia, AG 

Mr Tony Zappia MP Makin, South Australia, ALP 

Functions of the committee 

The <strong>Committee</strong> has the following functions: 

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

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

both Houses of the Parliament on that issue; 

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

Houses of the Parliament on that issue; 

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

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

matter. 

<strong>Committee</strong> secretariat PO Box 6100 

Ms Jeanette Radcliffe, Secretary Parliament House 

Ms Renuka Thilagaratnam, Principal Research Officer Canberra ACT 2600 

Ms Anita Coles, Principal Research Officer Ph: 02 6277 3823 

Mr Glenn Ryall, Senior Research Officer Fax: 02 6277 5767 

External Legal Adviser 

Professor Andrew Byrnes 

E-mail: human.rights@aph.gov.au 

Internet: http://www.aph.gov.au/joint_humanrights/ 

iii

Abbreviation Definition 

CAT 

Abbreviations 

Convention against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment 

CERD Convention on the Elimination of all forms of Racial Discrimination 

CEDAW Convention on the Elimination of Discrimination against Women 

CRC Convention on the Rights of the Child 

CRPD Convention on the Rights of Persons with Disabilities 

FRLI Federal Register of Legislative Instruments 

ICCPR International Covenant on Civil and Political Rights 

ICESCR International Covenant on Economic, Social and Cultural Rights 

v

Table of Contents 

Membership of the committee ........................................................................ iii 

Functions of the committee ............................................................................. iii 

Abbreviations .................................................................................................... v 

Executive Summary .......................................................................................... ix 

Part 1 – Bill introduced 12 – 14 March 2013 

Media reform package ................................................................................................ 1 

Broadcasting Legislation Amendment (Convergence Review and Other 

Measures) Bill 2013 .................................................................................................... 1 

Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 .................. 8 

News Media (Self-regulation) Bill 2013 .................................................................... 15 

News Media (Self-regulation) (Consequential Amendments) Bill 2013 .................. 15 

Public Interest Media Advocate Bill 2013 ................................................................ 24 

Television Licence Fees Amendment Bill 2013 ........................................................ 26 

Bills requiring further information to determine human rights 

compatibility ................................................................................................... 27 

Aged Care (Living Longer Living Better) Bill 2013 .................................................... 27 

Environment Protection and Biodiversity Conservation Amendment Bill 2013 ..... 32 

Financial Framework Legislation Amendment Bill (No. 2) 2013 .............................. 36 

Foreign Affairs Portfolio Miscellaneous Measures Bill 2013 ................................... 39 

International Organisations (Privileges and Immunities) Amendment Bill 2013 .... 42 

Social Security and Other Legislation Amendment 

(Caring for Single Parents) Bill 2013 ......................................................................... 48 

<strong>Parliamentary</strong> Service Amendment (<strong>Parliamentary</strong> Budget Officer) Bill 2013 ........ 51 

Bills unlikely to raise human rights incompatibility ............................................. 53 

Aged Care (Bond Security) Amendment Bill 2013 ................................................... 53 

Aged Care (Bond Security) Levy Amendment Bill 2013 ........................................... 53 

Australian Aged Care Quality Agency Bill 2013 ........................................................ 55 

Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 ................ 55 

vii

Broadcasting Services Amendment (Material of Local Significance) Bill 2013 ........ 58 

Citizen Initiated Referendum Bill 2013 ..................................................................... 60 

Insurance Contracts Amendment Bill 2013 .............................................................. 62 

International Monetary Agreements Amendment Bill 2013 ................................... 64 

Not-for-profit Sector Freedom to Advocate Bill 2013 .............................................. 65 

Water Efficiency Labelling and Standards (Registration Fees) Bill 2013 .................. 67 

Water Efficiency Labelling and Standards Amendment 

(Registration Fees) Bill 2013 ..................................................................................... 67 

Part 2 – Select legislative instruments registered with FRLI 

17 – 20 December 2012 

Consideration of legislative instruments ........................................................ 69 

Radiocommunications (Field Trial by Corrective Services NSW of 

PMTS Jamming Devices at Lithgow Correctional Centre) Exemption 

Determination 2012 ................................................................................................. 70 

Social Security (Actuarial Certificate - Life Expectancy Income Stream 

Guidelines) Determination 2012 .............................................................................. 73 

Social Security (Actuarial Certificate - Lifetime Income Stream 

Guidelines) Determination 2012 .............................................................................. 73 

Work Health and Safety Act 2011 (application to Defence activities 

and Defence members) Declaration 2012 ............................................................... 74 

viii

Executive Summary 

This report provides the <strong>Parliamentary</strong> <strong>Joint</strong> <strong>Committee</strong> on Human Rights' view on 

the compatibility with human rights (as defined in the Human Rights (<strong>Parliamentary</strong> 

Scrutiny) Act 2011 of bills introduced into the Parliament during the period 12 to 14 

March 2013 and select legislative instruments registered with the Federal Register of 

Legislative Instruments (FRLI) during the period 17 to 20 December 2012. 

Bills introduced 12 to 14 March 2013 

The committee considered 24 bills, all of which were introduced with a statement of 

compatibility. Twelve of the bills considered do not require further scrutiny as they 

do not appear to give rise to human rights concerns. The committee has identified 12 

bills that it considers require further examination and for which it will seek further 

information. 

Select instruments registered between 17 to 20 December 2012 

The committee considered the following four legislative instruments that were 

deferred for further consideration: 

• Radiocommunications (Field Trial by Corrective Services NSW of PMTS 

Jamming Devices at Lithgow Correctional Centre) Exemption Determination 

2012; 

• Social Security (Actuarial Certificate - Life Expectancy Income Stream 

Guidelines) Determination 2012; 

• Social Security (Actuarial Certificate - Lifetime Income Stream Guidelines) 

Determination 2012; 

• Work Health and Safety Act 2011 (application to Defence activities and 

Defence members) Declaration 2012. 

The committee is seeking further information in relation to these instruments before 

forming a view about their compatibility. 

Issues arising 

A number of the bills considered by the committee in this report have led it to reflect 

on some fundamental principles with regard to its role in the scrutiny of legislation. 

Timetable for the consideration of bills 

The committee considers that the timetable for the consideration of legislation 

should allow sufficient time for the Parliament to examine draft legislation in some 

ix

detail. 1 The committee notes that article 25 of the International Covenant on Civil 

and Political Rights guarantees the rights of citizens to participate in government 

through their elected representatives. A fundamental premise of the Human Rights 

(<strong>Parliamentary</strong>) Scrutiny Act 2011 is that the examination of draft legislation for 

human rights compatibility is an important component of the Australian Human 

Rights Framework, and that the role of the committee is not a purely formal one or 

intended to be primarily after-the-event commentary on legislation. 

Early release of comments 

The committee determined to release its comments early on six of the bills 2 in this 

report to give other parliamentary committees the benefit of these comments prior 

to the conclusion of their inquiries. These bills, which make up a package of bills on 

media reform, were referred to the Senate Environment and Communications 

Legislation <strong>Committee</strong> and the House of Representatives Infrastructure and 

Communications <strong>Committee</strong>. The subject matter of the bills is also the subject of an 

inquiry by the <strong>Joint</strong> Select <strong>Committee</strong> on Broadcasting Legislation established on 

14 March 2013. 

The committee has determined that I should draw attention to these issues in my 

tabling statement. 

Mr Harry Jenkins MP 

Chair 

1 See discussion on Broadcasting Legislation Amendment (Convergence Review and Other 

Measures) Bill 2013. 

2 The Broadcasting Legislation Amendment (Convergence Review and Other Measures) 

Bill 2013; the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013; the 

Television Licence Fees Amendment Bill 2013; the News Media (Self-regulation) Bill 2013; the 

News Media (Self-regulation) (Consequential Amendments) Bill 2013; and the Public Interest 

Media Advocate Bill 2013. 

Any Member or Senator who wishes to draw matters to the attention of the committee under the 

Human Rights (<strong>Parliamentary</strong> Scrutiny) Act 2011 is invited to do so.

Part 1 

Bills introduced 

12 – 14 March 2013

Media reform package 

Page 1 

The committee released its comments on the following six bills on 19 March 2013 in 

order to give other parliamentary committees the benefit of its comments. 1 

Broadcasting Legislation Amendment (Convergence Review 

and Other Measures) Bill 2013 

Introduced into the House of Representatives on 14 March 2013 

Portfolio: Broadband, Communications and the Digital Economy 

Summary of committee view 

1.1 The committee considers that the decision not to issue additional 

commercial broadcasting licences, but to make available unused spectrum for other 

purposes such as community broadcasting and the testing of innovative services, 

does not appear to be inconsistent with the right to freedom of expression. 

1.2 The committee considers that the requirement that the Minister have regard 

to the need to ensure that at least one of the non-executive Directors of the SBS 

Board be a qualified person of Indigenous background does not involve 

discrimination inconsistent with the provisions of the human rights treaties. 

Overview 

1.3 This bill forms part of a package of measures which represent the 

government's response to two reviews conducted in 2011 and 2012 – the 

Convergence Review and the Independent Inquiry into the Media and Media 

Regulation. 

1.4 This bill responds to matters raised in the Convergence Review primarily in 

relation to the television broadcasting spectrum, Australian content and public 

broadcasting. The bill seeks to make four key amendments: 

• it seeks to amend the Broadcasting Services Act 1992 to ensure that no 

additional commercial television broadcasting licences will be made 

1 The Broadcasting Legislation Amendment (Convergence Review and Other Measures) 

Bill 2013; the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013; the 

Television Licence Fees Amendment Bill 2013; the News Media (Self-regulation) Bill 2013; the 

News Media (Self-regulation) (Consequential Amendments) Bill 2013; and the Public Interest 

Media Advocate Bill 2013.

Page 2 

available (so that there remain only three commercial television 

broadcasting licences in the same licence area); 

• it seeks to amend the Broadcasting Services Act 1992 to increase the 

Australian content requirements on commercial broadcasters (but gives 

flexibility to broadcasters as to which channel (their primary or noncore 

channel) they broadcast the content on); 

• it seeks to amend the Australian Broadcasting Corporation Act 1983 

and the Special Broadcasting Service Act 1991 to update the charters of 

the ABC and SBS to expressly reflect the range of existing services, 

including online activities they provide, and to provide that the ABC has 

the sole responsibility to provide international broadcasting services; 

and 

• it seeks to provide that at least one of the Directors of SBS, appointed 

after the commencement of the Act, must be an Indigenous person. 

1.5 This bill and the accompanying five bills which constitute the media reform 

package were introduced into the Parliament on 14 March 2013. The Minister 

indicated his desire that the Parliament consider these bills and pass them by the 

end of the following week. 

1.6 The committee considers that the timetable for the consideration of a 

complex and important package of legislation such as this should allow sufficient 

time for the Parliament to examine the draft legislation in some detail. Article 25 of 

the International Covenant on Civil and Political Rights (ICCPR) guarantees the right 

of citizens to participate in government through their elected representatives. The 

UN Human Rights <strong>Committee</strong> has noted that: 

The conduct of public affairs, referred to in paragraph (a), is a broad 

concept which relates to the exercise of political power, in particular the 

exercise of legislative, executive and administrative powers. It covers all 

aspects of public administration, and the formulation and implementation 

of policy at international, national, regional and local levels… 

Where citizens participate in the conduct of public affairs through freely 

chosen representatives, it is implicit in article 25 that those 

representatives do in fact exercise governmental power and that they are 

accountable through the electoral process for their exercise of that power. 

1.7 The committee also notes that a fundamental premise of the Human Rights 

(<strong>Parliamentary</strong>) Scrutiny Act 2011 is that the examination of draft legislation for 

human rights compatibility is an important component of the Australian Human 

Rights Framework, and that the role of the committee is not purely a formal one or 

intended to be primarily after-the-event commentary on legislation.

Page 3 

1.8 The committee expresses its belief that adequate time and opportunity be 

provided for the consideration by the Parliament of complex legislative proposals 

which embody major policy changes. 

Compatibility with human rights 

1.9 The bill is accompanied by a self-contained statement of compatibility which 

states that the bill engages the right to freedom of expression and the rights of 

equality and non-discrimination and concludes it is compatible with human rights. 

Right to freedom of expression 

1.10 A number of aspects of the bill engage the guarantee of freedom of 

expression in article 19 of the ICCPR in both its individual and systemic aspects. 

Limitation on the number of broadcasting licences 

1.11 The bill gives effect to the recommendation of the Convergence Review that 

a fourth national commercial television network not be created, by providing that no 

additional commercial television broadcasting licences will be made available for this 

purpose. 

1.12 While the potential holders of such licences would be corporations and may 

therefore not be able to directly invoke the right to freedom of expression under 

article 19 of the ICCPR, that guarantee also confers the right to receive information 

and ideas on the potential audiences of such broadcasters. Accordingly, the decision 

not to open up available broadcasting spectrum for this purpose may be viewed as 

an encroachment on freedom of expression guaranteed by article 19. The statement 

of compatibility notes that: 

The measures that limit the number of terrestrial commercial television 

services in an area may limit the rights of natural persons to exercise 

freedom of expression, as outlined in Article 19(2) of the ICCPR, by 

restricting the availability and delivery of the most popular category of 

television service. 2 

1.13 The UN Human Rights <strong>Committee</strong> has underlined the positive obligations of 

States parties to the ICCPR to ensure that there is a diverse range of media and that 

there is not excessive media concentration. 3 Thus, a decision to restrict the number 

of broadcasting licences also engages this aspect of Australia’s obligations under 

article 19 of the ICCPR. 

2 Statement of compatibility, p 5. 

3 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), para 40.

Page 4 

1.14 The statement of compatibility notes the overall capacity of the spectrum 

available for television broadcasting is limited and that ‘existing broadcasting 

services, including commercial television broadcasting services, already take up a 

large part of the available spectrum’. 4 It argues that it is important to retain part of 

the spectrum for other purposes, with the cap being: 

designed to ensure that the remaining capacity in the television 

broadcasting services bands is made available for other types of 

broadcasting services – including (but not limited to) community television 

broadcasting services – as well as being available to test new broadcasting 

technologies as they emerge. 

New and innovative content services and communications services that 

are attractive to consumers require testing and trialling before their 

introduction. The capacity to do this would be severely limited if no 

broadcasting services bands spectrum remained available. 5 

1.15 The UN Human Rights <strong>Committee</strong> has recognised the challenges posed by 

restricted capacity and underlined the need for a fair allocation of the available 

resources among competing uses: 

Licensing regimes for broadcasting via media with limited capacity, such as 

audiovisual terrestrial and satellite services should provide for an equitable 

allocation of access and frequencies between public, commercial and 

community broadcasters. 6 

1.16 The approach adopted by the bill is consistent with that recommended by 

the Convergence Review, which is referred to in the explanatory memorandum and 

the statement of compatibility. The Final Report of the Convergence Review gives 

some details of the types of use that might be made of the spectrum if it were not 

made available for use under additional commercial broadcasting licences. 7 

1.17 The committee considers that the decision not to issue additional 

commercial broadcasting licences, but to make available unused spectrum for 

other purposes such as community broadcasting and the testing of innovative 

services, does not appear to be inconsistent with article 19 of the ICCPR. 



6 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), para 39. 

7 See the discussion of this issue in Convergence Review: Final Report (March 2012) pp 94-96.

Australian content requirements: freedom of expression and right to participate in 

cultural life 

Page 5 

1.18 The bill proposes a number of amendments to the Broadcasting Services 

Act 1992 which will impose Australian content transmission conditions on 

commercial broadcasting licensees. While a description of the nature and effect of 

these amendments appears in the explanatory memorandum, 8 no analysis of their 

human rights compatibility is provided. 

1.19 Imposing a condition that a broadcaster include specific content in programs 

would appear to limit the broadcaster's right to freedom of expression and also 

arguably of the right of the audience to receive information and ideas. Such a 

limitation should be justified as being a necessary and proportionate means of 

pursuing one of the legitimate objectives set out set out in article 19(3) of the ICCPR. 

No justification is provided for in the statement of compatibility. 

1.20 Stipulating Australian content standards may also be seen as a promotion of 

the right of everyone to take part in cultural life as guaranteed by article 15(1)(a) of 

the International Covenant on Economic, Social and Cultural Rights (ICESCR). 9 

1.21 The committee intends to write to the Minister to seek clarification as to 

the human rights compatibility of the proposed Australian content standards and 

licence conditions, in particular their consistency with freedom of expression 

(article 19 of the ICCPR) and the right of everyone to participate in cultural life 

(article 15(1)(a) of the ICESCR). 

Equality and non-discrimination 

1.22 The bill proposes amending section 17 of the Special Broadcasting Service 

Act 1991, which provides for the appointment of the non-executive Directors of the 

SBS Board. Subsection 17(2) provides that before a person is appointed as a nonexecutive 

Director, the Minister must have regard to a number of matters relating to 

the qualifications of individual members of the Board and to the overall composition 

of the Board. The bill seeks to require the Minister to have regard to an additional 

matter, namely that ‘at least one of the Directors is an Indigenous person.’ 10 

1.23 The statement of compatibility notes that the stipulation that the Minister 

take into account a potential director’s Indigenous background as a criterion for 

appointment to the Board, engages the right to equality and non-discrimination as 

8 Explanatory memorandum, pp 3, 12-18. 

9 See generally UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No 21 

(2009). 

10 Proposed new paragraph 17(2)(d).

Page 6 

guaranteed by various provisions of the ICCPR, the ICESCR and the International 

Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The right 

not to be discriminated against in appointment to public offices such as the SBS 

Board engages, among other provisions, articles 2(1), 25 and 26 of the ICCPR and a 

number of provisions of the ICERD. 

1.24 The statement of compatibility notes that not all differential treatment on 

the basis of race will be discriminatory if the criterion for such differentiation are 

reasonable and objective and are rationally related to the achievement of a 

legitimate purpose. 

1.25 The statement of compatibility notes that: 

The purpose of the creation of a reserved Indigenous position (which 

would still be filled on the basis of merit) is to ensure that the SBS Board 

includes a person with the necessary skills and experience to ensure the 

successful delivery of an Indigenous television service. These measures 

complement the recent integration of the National Indigenous Television 

Service (NITV) into SBS. 

1.26 It is not clear whether the implication is that being Indigenous is a necessary 

requirement (in addition to relevant industry knowledge and other skills) in order to 

ensure the successful delivery of an Indigenous television service by SBS, or whether 

some other function (such as representation) is being pursued, or both. 

1.27 At present the Special Broadcasting Service Act 1991 requires the Minister, in 

making recommendations on the appointment of non-executive Directors, to have 

regard to the need to ensure: 

(a) that the Directors collectively possess an appropriate balance of 

expertise in the areas required to govern the SBS effectively, including an 

understanding of Australia’s multicultural society and the needs and 

interests of the SBS’s culturally diverse audience; and 

(b) that the Directors collectively comprise persons with a diversity of 

cultural perspectives… 11 

1.28 The inclusion on the SBS Board of a person of Indigenous background would 

clearly be justifiable in ensuring that the Board reflects the diversity of Australian 

society – such a use of race or ethnicity as one of the factors to be taken into account 

when selecting from among a group of otherwise qualified people could be seen as a 

legitimate distinction pursuing a legitimate goal. Under the current version of 

section 17 of the Special Broadcasting Service Act 1991 it would be permissible to 

take a person’s Indigenous background into account if that contributed to the goal of 

assembling a Board with diverse cultural perspectives. That would be so, whether or 

11 See section 17(2) of the Special Broadcasting Service Act 1991.

Page 7 

not SBS was delivering an Indigenous television service or whether that person 

brought specific experience and skills relating to such a service. 

1.29 On such an analysis, the proposed amendment appears to be a justifiable 

differential treatment based on race, and would not need to be justified as a 

(temporary) special measure. 

1.30 The committee considers that the requirement that the Minister have 

regard to the need to ensure that at least one of the non-executive Directors of the 

SBS Board is a qualified person of Indigenous background does not involve 

discrimination inconsistent with the provisions of the ICCPR, the ICESCR or the 

ICERD.

Page 8 

Broadcasting Legislation Amendment (News Media 

Diversity) Bill 2013 




1.31 The committee notes that there may be a number of ways in which excessive 

and undue media concentration might be avoided consistently with the guarantee of 

freedom of expression. Before forming a view on the compatibility of the bill with the 

right to free expression, the committee seeks clarification of the standards to be 

applied in granting or refusing approval for a change of control of certain news media 

organisations. 

Overview 

1.32 This bill form part of a package of measures 12 which represent the 



Regulation. This bill responds to matters raised in the Convergence Review in relation 

to the diversity of media control. 

1.33 This bill seeks to amend the Broadcasting Services Act 1992 to make it an 

offence 13 (and subject to a civil penalty 14 ) for a person to become the controller of 

certain news media organisations unless the Public Interest Media Advocate 15 (PIMA) 

has approved the change of control. 16 

1.34 In deciding whether to approve a change of control, the PIMA must be 

satisfied that the change of control: 

12 There are six bills that form this package namely: the Broadcasting Legislation Amendment 

(Convergence Review and Other Measures) Bill 2013; the Broadcasting Legislation 

Amendment (News Media Diversity) Bill 2013; the Television Licence Fees Amendment Bill 

2013; the News Media (Self-regulation) Bill 2013; the News Media (Self-regulation) 

(Consequential Amendments) Bill 2013; and the Public Interest Media Advocate Bill 2013. 

13 See Schedule 1, item 20, new clauses 78BC and 78BD. 

14 See Schedule 1, item 20, new clauses 78BE and 78BF. 

15 To be established by the Public Interest Media Advocate Bill 2013. See the committee's 

comments on this bill at paragraphs 1.91-1.97 . 

16 See Schedule 1, item 20.

Page 9 

• will not result in a substantial lessening of diversity of control of 

registered news media voices; or 

• is likely to result in a benefit to the public and this benefit outweighs 

the detriment to the public caused by any lessening of diversity of 

control of registered news media voices. 17 

1.35 It is intended that this will apply to commercial television and radio, and 

subscription television services, that provide news or current affairs programs, 

newspapers or online services that have news or current affairs content or 

subscription television platforms (e.g. Foxtel) that include such services. Services will 

only be required to be registered if their audience or customer base exceeds 30 per 

cent of the average metropolitan commercial television evening news audience. 18 

1.36 The PIMA, in deciding whether to approve a transaction, can have regard to 

undertakings made by the registered news media voice that it will take, or refrain 

from taking, specified actions in relation to the news or current affairs content it 

provides. 19 

1.37 The bill also seeks to give the PIMA broad powers to make directions that a 

person dispose of shares in a company if a change of control occurs without the 

PIMA's prior approval (failure to comply being an offence and subject to a civil 

penalty) 20 and gives the PIMA broad information gathering powers. 21 

1.38 The bill also seeks to enable the Federal Court to grant injunctions in relation 

to transactions that are not approved by the PIMA. 22 



identifies that the bill engages the right to freedom of expression contained in 

article 19 of the International Covenant on Civil and Political Rights (ICCPR) and 

concludes that the bill is compatible with human rights. 

17 See Schedule 1, item 20, new clause 78CB. 

18 See Schedule 1, item 20, new Divisions 7-9. 

19 See Schedule 1, item 20, new clause 78CB(5) and new clause 78DA. 

20 See Schedule 1, item 20, new Division 5. 

21 See Schedule 1, item 20, new Division 6. 

22 See Schedule 1, item 21.

Page 10 

Freedom of expression 

1.40 The bill seeks to restrict the rights of persons to enter into certain 

transactions to control certain news media organisations. Those directly involved in 

such transactions are likely to be corporations and may therefore not be able to 

directly invoke the right to freedom of expression under article 19 of the ICCPR. 

However, the explanatory memorandum notes that these measures ‘may limit the 

rights of natural persons’ as well. 23 

1.41 The UN Human Rights <strong>Committee</strong> has stated that article 19 of the ICCPR 

requires States parties to ensure a diversity of media voices, including through 

measures to prevent excessive concentration of media ownership: 

The <strong>Committee</strong> reiterates its observation in general comment No. 10 that 

‘because of the development of modern mass media, effective measures 

are necessary to prevent such control of the media as would interfere with 

the right of everyone to freedom of expression’. The State should not have 

monopoly control over the media and should promote plurality of the 

media. Consequently, States parties should take appropriate action, 

consistent with the Covenant, to prevent undue media dominance or 

concentration by privately controlled media groups in monopolistic 

situations that may be harmful to a diversity of sources and views. 24 

1.42 The bill pursues the goal of promoting 'plurality of the media', as explained in 

the statement of compatibility: 

The measures in the Bill are designed to mitigate the risks associated with 

media concentration. Diversity in the media contributes to a wellfunctioning 

democratic society by providing citizens with a range of 

informed points of view and preventing any one media owner from 

exercising too much influence over public opinion or the political agenda. 25 

1.43 The UN Human Rights <strong>Committee</strong> has also recognised that the existence of a 

free and diverse media contributes to the enjoyment of the rights to participate in 

political and public life as guaranteed by article 25 of the ICCPR. 

1.44 There may be a number of ways in which excessive and undue media 

concentration might be avoided consistently with the guarantee of freedom of 

expression. The approach currently adopted under Australian law is to limit 

ownership to a certain percentage of the relevant media outlets. The approach 

proposed by the bill involves the application of a substantive, rather than purely 


24 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), para 40. 

25 Statement of compatibility, p 4.

Page 11 

quantitative, test. That test will be administered by a new regulatory body, the 

independent Public Interest Media Advocate (PIMA). 

1.45 The approval of the PIMA will be required for a range of transactions 

involving the acquisition of control of certain new media voices (‘control events’); 

such transactions are otherwise prohibited under pain of criminal and civil sanctions. 

The PIMA is barred from approving such transactions unless one of two conditions is 

satisfied: 

(a) the applicant satisfies the PIMA that the relevant ‘control event’ will 

not result in a substantial lessening of diversity of control of registered 

or listed news media voices, or 

(b) the relevant control event is likely to result in a benefit to the public 

and the benefit outweighs or would outweigh the detriment to the 

public constituted by any lessening of diversity of control of registered 

or listed news media voices that would result. 

1.46 Before making a decision to approve or to refuse to approve the transaction, 

the PIMA must consult publicly. 26 

Restriction provided by ‘law’ 

1.47 Article 19(3) permits the imposition of restrictions on the enjoyment of 

freedom of expression under certain circumstances: 

The exercise of the rights provided for in paragraph 2 of this article carries 

with it special duties and responsibilities. It may therefore be subject to 

certain restrictions, but these shall only be such as are provided by law and 

are necessary: 

(a) For respect of the rights or reputations of others; 

(b) For the protection of national security or of public order (ordre public), 

or of public health or morals 

1.48 Any limitation must be provided by ‘law’. This means not only that there 

must be a domestic rule adopted as part of the standard legislative process (or an 

accepted rule of the common law), but that the law or rule in question must satisfy 

what is known as the ‘quality of law’ test. This means that it must be sufficiently 

precise so as to provide an indication to a person whose rights are to be affected by 

the law of the circumstances under which, and the extent to which, the person’s 

enjoyment of freedom of expression will be restricted. As the UN Human Rights 

<strong>Committee</strong> has put it: 

26 Proposed new section 78CC.

Page 12 

For the purposes of paragraph 3 [of article 19], a norm, to be characterized 

as a ‘law’, must be formulated with sufficient precision to enable an 

individual to regulate his or her conduct accordingly and it must be made 

accessible to the public. A law may not confer unfettered discretion for the 

restriction of freedom of expression on those charged with its execution. 

Laws must provide sufficient guidance to those charged with their 

execution to enable them to ascertain what sorts of expression are 

properly restricted and what sorts are not. 27 

1.49 The standards which the PIMA is to apply in the determination of an 

application for approval of a transaction are broad and general, and may give rise to 

the issue of whether they are sufficiently precise for the purposes of satisfying article 

19(3) of the ICCPR. 

1.50 It is not clear to the committee that the standards set out in the bill on the 

basis of which the PIMA will grant or refuse approval in relation to a transaction 

provide the PIMA or persons affected with sufficient guidance or a precise 

indication of how that power will be exercised. 

1.51 The committee intends to write to the Minister for Broadband, 

Communications and the Digital Economy to seek clarification of the standards to 

be applied by the PIMA in determining applications and whether it can be said that 

they are sufficiently precise so that it can be said that they are provided by ‘law’ 

within the meaning of article 19(3) of the ICCPR. 

Right of access to court – availability of a review of the decision of the PIMA not to 

approve a transaction 

1.52 The bill does not provide for any review on the merits of the decision of the 

PIMA under proposed new subsection 78BC(2) to refuse to approve a transaction. A 

decision would presumably be subject to judicial review, but the extent to which a 

court could revisit issues of fact or the overall merits is limited under such 

procedures. 

1.53 The decision of the PIMA to refuse approval for a transaction would affect 

the right of a natural person to enter into a contract with another person, as well as 

the right to property. These rights are ones to which the right to a fair hearing in civil 

matters applies. 28 Accordingly, under this right an applicant (that is a natural person) 

is entitled to have access to an independent and impartial court or tribunal with the 

power to review all questions of fact and law that are critical to the determination of 

the dispute: the availability of judicial review is not necessarily be sufficient. 

27 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), para 25 (footnotes and references 

omitted). 

28 See article 14 (1) of the ICCPR, ‘rights and obligations in a suit at law’.

Page 13 

1.54 Neither the statement of compatibility nor the explanatory memorandum 

explicitly address the human rights issue. However, the explanatory memorandum 

notes: 

The PIMA’s decision is not subject to merits review. Merits review of 

decisions will not be available due to the nature of the assessment process 

being undertaken by the PIMA. The process, which will involve elements of 

both an inquiry with substantial public consultation and potentially a 

negotiation, has been designed to ensure transacting parties reasonably 

engage with the PIMA during the assessment process. The Administrative 

Review Council Guidelines note that processes that would be timeconsuming 

and costly to repeat on review—as would be the case with 

consideration of the proposed public interest test and any negotiation of 

associated undertakings—may be exempted from including a merits 

review process. 29 

1.55 While restrictions on the right of access to a court under article 14(1) may be 

permissible in certain circumstances, they must identify a legitimate purpose, be 

narrowly drawn and not be disproportionate. The materials provided to the 

committee do not address these issues. 

1.56 The committee is concerned that the absence of merits review of refusals 

by the Public Interest Media Advocate to approve transactions of a natural person 

is inconsistent with the guarantee of access to a court contained in article 14(1) of 

the ICCPR. The committee intends to write to the Minister for Broadband, 

Communications and the Digital Economy to ask whether the lack of merits review 

can be justified as a reasonable and proportionate measure. 

Offences 

1.57 The bill creates a number of offences and civil penalty provisions. These are 

intended to reinforce the role of the PIMA who has the power to approve (or to 

refuse to approve) proposed transfers of ownership that will bring about a change of 

control of certain media services. Division 12 of the bill creates a number of offences 

relating to failures to provide notifications of various developments to the Australia 

Communications Media Authority (ACMA). Proposed new section 78ML states that 

these offences are ones of strict liability. The statement of compatibility makes no 

reference to this, and the explanatory memorandum provides no justification of the 

creation of strict liability offences. Strict liability offences allow for the imposition of 

criminal liability without the need to prove fault, and so engage and limit the right to 

be presumed innocent until proven guilty under article 14(2) of the ICCPR. 

29 Explanatory memorandum, p 20.

Page 14 


Communications and the Digital Economy to request an explanation of why the 

creation of strict liability offences under the proposed new Division 12 is necessary. 

Right not to incriminate oneself 

1.59 Proposed new section 78FA provides the PIMA with the power to require a 

person to produce information and documents where the PIMA believes on 

reasonable grounds that the person has information or documents that are relevant 

to the operation of Part 5A of the bill. 

1.60 When this power is combined with the power proposed to be conferred on 

the PIMA by clause 20 of the Public Interest Media Advocate Bill 2013, potential 

issues of an encroachment on the right not to incriminate oneself may arise. These 

matters are discussed below as part of the committee’s analysis of the Public Interest 

Media Advocate Bill 2013. 30 

30 See paragraphs 1.91-1.97 of this report.

News Media (Self-regulation) Bill 2013 



Page 15 

News Media (Self-regulation) (Consequential Amendments) 

Bill 2013 




1.61 The committee considers that these bills appear to limit the right to freedom 

of expression and freedom of association, and notes that in order to justify these 

limitations, it must be demonstrated that the new scheme seeks to address a 

legitimate objective and the measures adopted are necessary and proportionate. 

1.62 The committee considers that the material presented in support of the bill 

does not provide sufficient information about supposed inadequacies or the 

ineffectiveness of current systems in regulating the news media to allow an informed 

assessment of the need for, and proportionality of, the proposed scheme of 

regulation. 

1.63 Before forming a view on the compatibility of these bills with human rights, 

the committee seeks further information as to why changes to the regulation of the 

news media is considered necessary and whether any other less intrusive 

alternatives to the proposed scheme were considered. 

Overview 

1.64 These bills form part of a package of measures 31 that represent the 

government's response to two reviews that were conducted in 2011 and 2012 – the 


Regulation. These bills respond to matters raised in both inquiries relating to 

standards of media news and commentary. 

1.65 The bills seek to introduce a new scheme whereby: 





(Consequential Amendments) Bill 2013; and the Public Interest Media Advocate Bill 2013.

Page 16 

• a media organisation will only continue to be exempted from the 

requirements of the Privacy Act 1988 if that organisation is a member 

of a 'news media self-regulation body'; 32 

• the Public Interest Media Advocate (PIMA) 33 will have the power to 

declare that a specified body corporate is a 'news media self-regulation 

body'; 34 

• A body corporate can only be declared to be a news media selfregulation 

body if it has a 'news media self-regulation scheme' in 

place. 35 The PIMA has a discretion to declare a body to be a news 

media self-regulation body, but in exercising that discretion the PIMA 

must have regard to a number of matters, including: 

• the extent to which the body's self-regulation scheme is likely to 

be effective; 

• the extent to which standards made under the scheme deal with 

privacy, fairness, accuracy, the professional conduct of journalism 

and community standards; 

• transparency in the standards and compliance with them; 

• the availability of remedial action under the scheme and the 

ability for complaints to be made; 

• the extent to which decision-making under the scheme is 

independent from news media organisations, news media owners, 

governments and government authorities; 

• the need for freedom of expression and the need to protect 

individual privacy. 

• Before making a declaration that a body is a news media self-regulation 

body, the PIMA must consult the Privacy Commissioner, publish the 

draft declaration and invite submissions. 36 The PIMA also has the power 

32 See News Media (Self-regulation) (Consequential Amendments) Bill 2013, Schedule 1, item 1. 

Currently, the Privacy Act 1988 provides that a media organisation acting 'in the course of 

journalism' can claim an exemption from the requirements of the Privacy Act if it is publicly 

committed to observing certain privacy standards, which generally take the form of industry 

codes. These bills would add the additional requirement that the organisation be a member of 

a 'news media self-regulation body'. 

33 See Public Interest Media Advocate Bill 2013, and the committee's comments on this bill at 

paragraphs 1.169-1.175. 

34 See News Media (Self-regulation) Bill 2013, clause 7(1). 

35 Ibid, clause 7(2)(c). 

36 Ibid, clause 8.

Page 17 

to hold hearings in the carrying out his or her functions or exercising 

powers. 37 


1.66 These bills are accompanied by a self-contained and detailed statement of 

compatibility, which address issues related to the bills' impact on the enjoyment of 

freedom of expression, the right to privacy, freedom of association, and the right to 

take part in political and public affairs. 

General 

1.67 The stated purpose of the bills is ‘to promote compliance by significant 

providers of print and online news and current affairs with minimum standards both 

in the practice of journalists and in the effectiveness of complaints handling 

arrangements’. 38 


1.68 The guarantee of freedom of expression in its individual and systemic forms 

is considered to be a fundamental pillar of a free and democratic society. The UN 

Human Rights <strong>Committee</strong> has stated in relation to the guarantee contained in article 

19 of the International Covenant on Civil and Political Rights (ICCPR): 

A free, uncensored and unhindered press or other media is essential in any 

society to ensure freedom of opinion and expression and the enjoyment of 

other Covenant rights. It constitutes one of the cornerstones of a 

democratic society. The Covenant embraces a right whereby the media 

may receive information on the basis of which it can carry out its function. 

The free communication of information and ideas about public and 

political issues between citizens, candidates and elected representatives is 

essential. This implies a free press and other media able to comment on 

public issues without censorship or restraint and to inform public opinion. 

The public also has a corresponding right to receive media output. 

As a means to protect the rights of media users, including members of 

ethnic and linguistic minorities, to receive a wide range of information and 

ideas, States parties should take particular care to encourage an 

independent and diverse media. 39 

1.69 Given the fundamental nature of this right, international human rights 

bodies have scrutinised with great care any limitations on freedom of expression, 

37 See Public Interest Media Advocate Bill 2013, clause 19. 


39 Human Rights <strong>Committee</strong>, General Comment No 34 (2011), paras 13-14.

Page 18 

including the introduction of regulatory schemes for media. They have insisted that 

States demonstrate convincingly the need for measures which prevent or restrict the 

operation of a free and independent media, 40 and have been especially concerned 

about content-based restrictions and restrictions which might inhibit the expression 

of views that contribute to public and political debate. 

1.70 At the same time, article 19(2) provides that the exercise of freedom of 

expression carries with it special responsibilities, and certain limitations on the 

exercise of freedom of expression are permissible under article 19(3). International 

human rights bodies have also drawn attention to the obligations of States to protect 

other rights, in particular the rights to privacy and reputation, which may be affected 

by the exercise of freedom of expression. 

1.71 When considering the permissible scope of freedom of expression in a 

democratic society, human rights bodies have noted that the guarantee protects the 

expression of views that may be ill-informed, exaggerated, reliant on comedy or 

parody, offensive to others, and wrong. The UN Human Rights <strong>Committee</strong> has 

underlined the extensive scope of the right: 41 

Paragraph 2 [of article 19] requires States parties to guarantee the right to 

freedom of expression, including the right to seek, receive and impart 

information and ideas of all kinds regardless of frontiers. This right 

includes the expression and receipt of communications of every form of 

idea and opinion capable of transmission to others, subject to the 

provisions in article 19, paragraph 3, and article 20. It includes political 

discourse, commentary on one’s own and on public affairs, canvassing, 

discussion of human rights, journalism, cultural and artistic expression, 

teaching, and religious discourse. It may also include commercial 

advertising. The scope of paragraph 2 embraces even expression that may 

be regarded as deeply offensive, although such expression may be 

restricted in accordance with the provisions of article 19, paragraph 3 and 

article 20. 

Paragraph 2 protects all forms of expression and the means of their 

dissemination. Such forms include spoken, written and sign language and 

such non-verbal expression as images and objects of art. Means of 

expression include books, newspapers, pamphlets, posters, banners, dress 

and legal submissions. They include all forms of audio-visual as well as 

electronic and internet-based modes of expression. 

Permissible restrictions on freedom of expression 

40 Ibid, para 27. 

41 Ibid, para 11.

Page 19 

1.72 Even though restrictions are permissible in certain circumstances, human 

rights bodies have insisted that any restrictions be convincingly justified and 

narrowly tailored to the achievement of a legitimate purpose. As the UN Human 

Rights <strong>Committee</strong> has stated: 

Restrictions must not be overbroad. The <strong>Committee</strong> observed in general 

comment No. 27 that ‘restrictive measures must conform to the principle 

of proportionality; they must be appropriate to achieve their protective 

function; they must be the least intrusive instrument amongst those which 

might achieve their protective function; they must be proportionate to the 

interest to be protected…The principle of proportionality has to be 

respected not only in the law that frames the restrictions but also by the 

administrative and judicial authorities in applying the law’. The principle of 

proportionality must also take account of the form of expression at issue 

as well as the means of its dissemination. For instance, the value placed by 

the Covenant upon uninhibited expression is particularly high in the 

circumstances of public debate in a democratic society concerning figures 

in the public and political domain. 

When a State party invokes a legitimate ground for restriction of freedom 

of expression, it must demonstrate in specific and individualized fashion 

the precise nature of the threat, and the necessity and proportionality of 

the specific action taken, in particular by establishing a direct and 

immediate connection between the expression and the threat. 42 

1.73 It is against this general background that the committee approaches the 

scheme proposed by the bill. The purpose of the bill is to bring a range of news 

media within a new regulatory framework. Some of the media covered by the bill are 

already members of a self-regulatory body, others may be subject to regulation by 

the Australian Communications Media Authority (ACMA), but others are not 

currently subject to any form of regulation. 

1.74 News organisations by virtue of their status as such currently enjoy the 

benefit of exemption from certain provisions of the Privacy Act 1988. 

Subsection 7B(4) of the Privacy Act 1988 provides: 

(4) An act done, or practice engaged in, by a media organisation is exempt 

for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is 

engaged in: 

(a) by the organisation in the course of journalism; and 

(b) at a time when the organisation is publicly committed to observe 

standards that: 

42 Ibid, paras 34-35.

Page 20 

(i) deal with privacy in the context of the activities of a media 

organisation (whether or not the standards also deal with other 

matters); and 

(ii) have been published in writing by the organisation or a person or 

body representing a class of media organisations. 

1.75 The New Media (Self-regulation) (Consequential Amendments) Bill 2013 

proposes to add a new paragraph 7B(4)(c) to the Privacy Act 1988 which will include 

the further requirement that, in order to benefit from the exemption, the news 

media organisation must at the relevant time be a current member of a news media 

self-regulation body (within the meaning of that Act). 

1.76 The statement of compatibility notes that: 

By being a member of a declared news media self-regulation body, a news 

media organisation will retain the exemption from the National Privacy 

Principles and other provisions of the Privacy Act that it currently enjoys 

under subsection 7B(4) of the Privacy Act but will commit to observance of 

standards framed more specifically for the print and online media through 

its membership of a news media self-regulation body declared by the 

Public Interest Media Advocate. This approach of linking membership of a 

recognised body to certain privileges of journalism is a simple and 

transparent mechanism to promote effective and independent selfregulation 

of print and online news media organisations. 

1.77 Without the benefit of this exemption, it would be difficult, if not impossible, 

for many media organisations to carry on their news work. 

1.78 The effect of the bills are, as a practical matter, to require a news media 

source to become a member of a self-regulation body whose constitution, powers 

and operations satisfy a number of criteria. The PIMA is the arbiter of whether the 

self-regulation organisation satisfies those standards and the PIMA can declare that a 

particular organisation no longer satisfies the criteria, and can therefore lose the 

benefit of their exclusion from certain provisions of the Privacy Act 1988. 

1.79 While the actual direct regulation of the standards of news media bodies, 

including consideration of complaints, is not undertaken by a statutory body (the 

PIMA), nonetheless the proposed scheme represents a significant change in the 

manner in which Australian media have been regulated. Outside the area of 

broadcasting, the regulation has largely been self-regulation on a voluntary and nonbinding 

basis (in the case of many newspapers and their on-line platforms, through 

the Australian Press Council). 

1.80 Removing the exemption of news media organisations from the Privacy 

Act 1988 appears to effectively limit the right to freedom of speech of the journalists 

who may no longer have the benefit of the exemption and limits the rights of readers

Page 21 

and viewers to receive information unfettered by these confidentiality requirements. 

Enabling the PIMA to determine which media organisations can have access to that 

exemption is a form of regulation on how news media organisations operate, and 

appears to engage and limit the rights of these organisations to freedom of speech, 

and the rights of people to receive information from such news organisations. In 

order to justify an important change of this sort, the Minister must be able to point 

to a legitimate objective for such regulation, show that the proposed scheme bears a 

rational connection to this objective, and demonstrate that it is a necessary and 

proportionate measure for achieving that objective. 

Right to privacy – positive measures and a permissible basis of limitation of freedom 

of expression 

1.81 Under the ICCPR States parties have an obligation to take positive measures 

to ensure that the right of a person to privacy and reputation are not unlawfully or 

arbitrarily interfered with by the state or by non-state actors. This includes 

protection against unlawful or arbitrary interference with privacy and reputation by 

the media. 

1.82 The statement of compatibility argues that the measures contained in the bill 

‘will promote news media organisations’ respect for the privacy of individuals 

through effective and transparent self-regulation which includes mechanisms to 

achieve compliance with appropriate standards of practice and opportunities to have 

concerns addressed.’ 43 It states that the bill will balance the rights of the new media 

to publish and the rights of individual in relation to privacy and reputation. 

Approach to evaluation of the encroachment of freedom of expression 

1.83 The bill states that its purpose is to promote compliance by media with 

standards set by the media industry itself, although these must, in the view of the 

PIMA, satisfy the various criteria set out in proposed new section 7. A number of 

these criteria are related to objectives the pursuit of which is permitted by article 

19(3) of the ICCPR, for example the reference to privacy (covered by the permissible 

objective of ensuring ‘respect for the rights and reputation of others’). However, the 

range of criteria that the PIMA must consider goes well beyond the matters 

mentioned in article 19(3). The statement of compatibility does not clearly articulate 

how the requirement to take into account a wide range of factors in determining 

whether a self-regulation body should be a declared news self-regulation body, in 

general promotes an objective permitted by article 19(3) and is a reasonable and 

proportionate means of doing so. 


Page 22 

1.84 On the basis of the material provided with the bill it is difficult to assess 

whether the limitation on freedom of expression is justified. Neither the explanatory 

memorandum nor the statement of compatibility demonstrate why these reforms 

are necessary. They do not provide any detailed information or empirical data on the 

extent of the unacceptable intrusions by the news media on personal privacy in 

Australia, or of the adequacy or otherwise of existing procedures (media specific or 

under the general law) for obtaining redress if there is a violation of the right to 

privacy. No doubt there are some (possibly many), for which there may be no 

redress, but the statement of compatibility takes that for granted rather than 

demonstrating it. 

1.85 To the extent that current regulation may not be effective, the question then 

becomes one of proportionality— the question arise of whether a major new scheme 

of regulation is a proportionate response to any demonstrated inadequacies in the 

current system or whether some other less intrusive alternative might achieve 

similar results. The statement of compatibility does not provide any information 

about other options considered by the government. 

Freedom of association 

1.86 The statement of compatibility identities freedom of association as a right 

potentially engaged by the bill. However, it argues that even though the scheme 

‘encourages’ certain news media organisations to become members of a selfregulation 

body, 'membership … remains voluntary under the scheme' and 

accordingly the bill 'does not limit the right to freedom of association'. 44 

1.87 In assessing the impact of a legislative measure on the enjoyment of rights, 

international human rights jurisprudence looks not only at the formal elements of a 

law but at its practical impact. The scheme established by the bill conditions a media 

organisation’s enjoyment of the journalist’s exemption from the Privacy Act 1988 on 

it being a member of a declared self-regulation body (that is, one that is in 

compliance with the criteria set out in the bill, in the assessment of the PIMA). 

Without the benefit of that exemption, it would be extremely difficult, if not 

impossible, to engage in news journalism, in particular on a competitive basis. 

Accordingly, as a practical matter most news organisations would feel compelled to 

join such an organisation. Indeed, the success of the scheme proposed seems 

premised on the existence of such compulsion in practice if not in law. 

1.88 Thus, the guarantee of freedom of association in article 22 of the ICCPR is 

engaged. The question becomes whether the restriction on the enjoyment of that 

freedom is justified. This raises similar issues to the question of whether the scheme 

embodies permissible limitations on freedom of expression. 


Page 23 

1.89 The committee considers that the material presented to the Parliament in 

support of the bill does not provide sufficient information about supposed 

inadequacies or ineffectiveness of current systems for the regulation of media to 

allow an informed assessment of the need for, and proportionality of, the 

proposed scheme of regulation. 

1.90 The committee intends to write to the Minister Broadband, 

Communications and the Digital Economy to request further information as to why 

changes to the regulation of the news media is considered necessary and will ask 

whether other less intrusive alternatives to the proposed scheme were considered 

and, if so, why this scheme was chosen over any less intrusive measures.

Page 24 

Public Interest Media Advocate Bill 2013 




1.91 The committee seeks clarification about whether the combined effect of 

proposed powers to compel a person to provide information in the Broadcasting 

Legislation Amendment (News Media Diversity) Bill 2013 and proposed powers in 

this bill which enables the PIMA to disclose information to bodies with prosecutorial 

or regulatory enforcement functions is compatible with the right not to incriminate 

oneself. 

Overview 

1.92 This bill seeks to create a new independent statutory office of the Public 

Interest Media Advocate (PIMA) which will perform functions under the News Media 

(Self-regulation) Bill 2013 and the proposed new Part 5A of the Broadcasting Act 

1992 (if enacted). 45 



sets out in some detail the rights engaged by the bill and articulates justifications for 

the proposed limitations on the enjoyment of those rights. 

Right not to incriminate oneself 

1.94 Clause 20 of the bill provides that the PIMA may disclose certain types of 

information to listed bodies and agencies. These include bodies such as the 

Australian Securities Commission (ASIC), the Australian Prudential Regulation 

Authority (APRA) and the Director of Public Prosecutions, which have responsibilities 

for prosecuting persons for criminal offences or instituting civil penalty proceedings. 

1.95 The information that may be disclosed will include information obtained by 

the PIMA under the proposed new section 78FA of the Broadcasting Services Act 

1992 (to be inserted in that Act by the Broadcasting Legislation Amendment (News 

Media Diversity) Bill 2013). Proposed new section 78FA provides that if the PIMA 

45 The committee has provided comments on these new functions in its commentaries on the 

Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 at paras 1.31-1.60 and 

the News Media (Self-regulation) Bill 2013 at paras 1.61-1.90.

Page 25 

‘believes on reasonable grounds that the person has information or a document that 

is relevant to the operation of this Part’, the PIMA may require the person to provide 

the information or documents to the PIMA. Failure to comply will expose the person 

to proceedings for a civil penalty. 46 There is no explicit provision that a person may 

refuse to comply with such a requirement on the ground that it may tend to 

incriminate the person or expose them to a penalty. 

1.96 The statement of compatibility provided with the bill states that ‘[n]othing in 

this bill is intended to abrogate an individual’s common law privilege against selfincrimination’. 

47 However, it is not clear whether this stipulation would prevent 

information obtained under the proposed new section 78FA of the Broadcasting 

Services Act 1992 from being used in such a way. In addition, the common law 

privilege against self-incrimination may not be co-extensive with the right not to 

incriminate oneself under human rights law. 


Communications and the Digital Economy to seek clarification about the combined 

effect of the proposed new section 78FA of the Broadcasting Services Act 1992 and 

the proposed power of the PIMA under clause 20 of this bill to disclose information 

to bodies with prosecution or regulatory enforcement functions. In particular, the 

committee is concerned that the combination of the two provisions may have the 

effect of infringing the right not to incriminate oneself in criminal proceedings 

(including civil penalty proceedings, to the extent that these may be considered 

‘criminal’ for the purposes of human rights law). 

46 Proposed new subsections 78FA(4) and (5). 


Page 26 

Television Licence Fees Amendment Bill 2013 



1.98 This bill form part of a package of measures 48 which represent the 



Regulation. This bill responds to matters raised in the Convergence Review. 

1.99 This bill seeks to amend the Television Licence Fees Act 1964 to reduce the 

annual licence fee payable by commercial television broadcasting licences by 50 per 

cent. It sets out how the licence fee is to be calculated by inserting a new sliding 

scale of licence fees. This 50 per cent reduction in fees is currently provided for in the 

Television Licence Fees Regulations 1990. This bill seeks to replace these temporary 

rebates by providing for a permanent reduction in fees. 



states that no rights are engaged by the bill, and which notes: 

This measure will increase regulatory certainty for the industry and enable 

broadcasters to continue to support the production of Australian content 

in an increasingly challenging operating environment. 49 

1.101 The bill may therefore promote the right to participate in cultural life in 

article 15(1)(a) of the International Covenant on Civil and Political Rights (ICCPR) and 

the right to freedom of expression in article 19 of the ICCPR. 

1.102 The committee considers that the bill does not give rise to issues of 

incompatibility with human rights. 





(Consequential Amendments) Bill 2013; and the Public Interest Media Advocate Bill 2013. 


Bills requiring further information to determine 

human rights compatibility 

Aged Care (Living Longer Living Better) Bill 2013 


Portfolio: Health and Ageing 


Page 27 

1.1 The committee considers that the bill engages a number of rights including 

the right to health, the right to equality and non-discrimination and rights under the 

Convention on the Rights of Persons with Disabilities. It seeks further details about 

the overall impact of the proposed means test for aged care services and the 

justification for what appears to be a retrogressive measure. 

1.2 The committee seeks further information about the protections that are 

provided where a person faces a possible reduction of subsidy if the person fails to 

produce information or documents under the bill and the Aged Care Act 1997. 

Overview 

1.3 This bill seeks to amend the Aged Care Act 1997 and a number of other Acts 

to give effect to the Living Longer Living Better reforms announced by the 

government in April 2012. This bill was introduced with four other bills as part of a 

package of legislation to give effect to these reforms. 1 This bill implements reforms 

across a range of areas including: 

• changes relating to residential care, including: 

- in relation to approvals for permanent residential care; 

- the way that residential care subsidies and fees are calculated; 

- contributions to accommodation costs; 

• changes to establish a new type of care, home care, including: 

- extension of the existing community visitors scheme for people 

receiving residential care to home care; 

- amendments to how home care subsidy and fees are calculated, 

including an income tested care fee; 

1 See Australian Aged Care Quality Agency Bill 2013; Australian Aged Care Quality Agency 

(Transitional Provisions) Bill 2013; Aged Care (Bond Security) Amendment Bill 2013; and Aged 

Care (Bond Security) Levy Amendment Bill 2013.

Page 28 

• additional dementia supplements, a new veterans’ mental health 

supplement and a workforce supplement to be payable to certain 

providers; 

• changes relating to governance and administration, including: 

- a new Aged Care Pricing Commissioner empowered to make 

decisions on certain pricing issues; 

- provision for an independent review of the reforms to commence 

in 2016; and 

• minor, administrative or consequential amendments. 



identifies a number of rights engaged by the bill, including the right to health under 

article 12 of the International Covenant on Economic, Social and Cultural Rights 

(ICESCR), the right to equality and non-discrimination under article 2(2) of the 

ICESCR, and rights under the Convention on the Rights of Persons with Disabilities. 

1.5 The overall purpose of the bill is to change the basis on which older persons 

are provided with and contribute to the cost of their accommodation and services 

both in residential care and in their own homes. The explanatory memorandum 

notes that the package of reforms involves the expenditure of an additional 

$3.5 billion dollars over 5 years from 2012-2013. 2 

1.6 The statement of compatibility notes that the bill promotes the enjoyment of 

the right to the highest attainable standard of physical and mental health guaranteed 

by article 12 of the ICESCR. In addition, the bill may also be viewed as promoting the 

right of a person to an adequate standard of living guaranteed by article 11 of the 

ICESCR and also the right to social security guaranteed by article 9 of the ICESCR. 

Other ICESCR rights may also be engaged. 3 Insofar as the bill provides further 

support to persons in their own home, it may be seen as giving effect to the positive 

obligations of the State under article 17 of the ICCPR. The same analysis would apply 

in relation to persons living in aged residential care; these residences fall within the 

guarantee of protection for privacy and the home contained in article 17 of the 

ICCPR. 

1.7 Many older persons may live with disability, and the statement of 

compatibility identifies the Convention on the Rights of Persons with Disabilities 

(CRPD) as relevant, noting that article 3(a) of the CRPD sets out as one of the general 

principles underlying that convention ‘respect for inherent dignity, individual 

2 Explanatory memorandum, p 3. 

3 See the discussion by the UN <strong>Committee</strong> on Economic, Social and Cultural Rights in its General 

Comment No 6 (1995) on the economic, social and cultural rights of older persons.

Page 29 

autonomy including the freedom to make one's own choices, and independence of 

persons.’ 4 Other provisions of the CRPD are also relevant, including (but not limited 

to): 

• article 16: the right of persons with disability to be protected against all 

forms of exploitation, violence and abuse, including their gender-based 

aspects; 

• article 19: the right of persons with disability to live in the community 

and to choose their place of residence, and to have access to a range of 

in-residential and other community support services, including personal 

assistance necessary to support living and inclusion in the community, 

and to prevent isolation or segregation from the community; 

• article 22: the right of persons with disability, regardless of place of 

residence or living arrangements, not to be subjected to arbitrary or 

unlawful interference with his or her privacy, family or correspondence 

or other types of communication; 

• article 25: the right to the enjoyment of the highest attainable standard 

of health without discrimination on the basis of disability; and 

• article 28: the right to an adequate standard of living and to social 

protection. 

1.8 The committee notes that given the difference in life expectancy of men and 

women that the provision of aged care may also have gendered dimensions. In this 

regard the Convention on the Elimination of All Forms of Discrimination against 

Women is also relevant. 5 

Permissibility of retrogressive measures 

1.9 The explanatory memorandum and statement of compatibility refer to 

changes to the way in which residential care subsidies and fees are calculated for 

those who enter residential care after 1 July 2014, including 'a new means test 

combining income and assets tests, and new annual and lifetime caps on means 

tested care fees'. 6 The explanatory memorandum states that as a result of changes 

that will take effect from 1 July 2014 'some care recipients [will] contribute more to 

the cost of their care through an income tested care fee'. 7 The bill contains a number 

of provisions which set out the manner in which contributions are to be calculated. 


5 See generally UN <strong>Committee</strong> on the Elimination of Discrimination against Women, General 

recommendation No. 27 on older women and protection of their human rights (2010). 



Page 30 

1.10 However, neither the explanatory memorandum nor the statement of 

compatibility provides a clear indication of the extent of the proposed reductions, 

either generally or for individual recipients. It would be of assistance if figures were 

provided which indicated the overall savings estimated to be made from the 

introduction of a means test, and examples of the impact on persons who will be 

subject to the means test. 

1.11 A reduction in the amount of subsidies or other support provided to 

individual recipients encroaches on the person’s enjoyment of the relevant right, and 

may be viewed as a retrogressive measure. Such measures need to be justified, as 

the UN <strong>Committee</strong> on Economic, Social and Cultural Rights has noted: 

[A]ny deliberately retrogressive measures in that regard would require the 

most careful consideration and would need to be fully justified by 

reference to the totality of the rights provided for in the Covenant and in 

the context of the full use of the maximum available resources. 8 

1.12 The committee has addressed similar issues relating to the need to justify 

retrogressive measures in its interim report on the Social Security Legislation 

Amendment (Fair Incentives to Work) Bill 2012 9 and in its examination of the 

changes to the Medicare Chronic Disease Dental Scheme (CDDS). 10 


1.13 The statement of compatibility also notes that the bill engages the rights to 

equality and non-discrimination under article 2(2) of the ICESCR (it would also 

engage article 26 of the International Covenant on Civil and Political Rights). Article 

2(2) of the ICESCR provides a guarantee against discrimination in the enjoyment of 

the rights contained in the ICESCR. The imposition of a means test for eligibility for 

certain benefits involves differential treatment based on 'property'. However, as the 

UN <strong>Committee</strong> on Economic, Social and Cultural Rights has noted: 

Differential treatment based on prohibited grounds will be viewed as 

discriminatory unless the justification for differentiation is reasonable and 

objective. This will include an assessment as to whether the aim and 

effects of the measures or omissions are legitimate, compatible with the 

nature of the Covenant rights and solely for the purpose of promoting the 

general welfare in a democratic society. In addition, there must be a clear 

and reasonable relationship of proportionality between the aim sought to 

be realized and the measures or omissions and their effects. 

8 UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No 3 (1990), 

para 9. 

9 PJCHR, Interim Report—Social Security Legislation Amendment (Fair Incentives to Work) Bill 

2012, Fourth Report of 2012. 

10 See PJCHR, Seventh Report of 2012, pp 51-55, and Third Report of 2013, pp 133-134.

Page 31 

1.14 In this case the use of a means test as the basis for the reduction in benefits 

or subsidies would involve the employment of an objective criterion. The question of 

whether the purpose being pursued is legitimate and whether the imposition of a 

means test is a reasonable and proportionate measure, raises similar issues to those 

that fall to be considered in deciding whether any retrogression in the enjoyment of 

rights is justifiable. 

1.15 The committee intends to write to the Minister for Mental Health and 

Ageing to request further details about the overall impact of the proposed means 

test, including any savings from the means test and the impact on individuals, and 

the justification for what appears to be a retrogressive measure under the ICESCR. 

Procedural protections in case of reduction of subsidies 

1.16 Under the bill the Secretary of the Department of Health is empowered to 

determine that a person should have certain subsidies reduced. The Secretary may 

request the provision of information relevant to that matter, and a failure by the 

person to provide it may mean that the relevant subsidy is reduced. An example is 

the proposed new section 44-20A of the Aged Care Act 1997. This provides that 

where the Secretary ‘believes on reasonable grounds that a care recipient is entitled 

to compensation under a judgement, settlement or reimbursement arrangement’, 

the Secretary may direct the person to produce relevant information or documents. 

If the person fails to produce the information or documents, the Secretary may 

determine reductions in subsidies to be received by the person. Given that the 

request may be made to an older person who may be in poor health that may affect 

the person’s ability to understand or respond to such a request, there may be 

concerns about the fairness of such procedures. 

1.17 The committee intends to write to the Minister for Mental Health and 

Ageing to request further information about the protections that are provided 

where a person faces a possible reduction of subsidy if the person fails to produce 

information or documents under proposed new section 44-20A and other similar 

provisions of the bill and the Aged Care Act 1997.

Page 32 

Environment Protection and Biodiversity Conservation 

Amendment Bill 2013 


Portfolio: Sustainability, Environment, Water, Population and Communities 


1.18 The committee seeks clarification as to whether the proposed civil penalty 

provisions in the bill could be considered to be 'criminal' charges' for the purposes of 

articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR) 

given the significant penalties that may be imposed under them, and seeks 

information about how the imposition of an evidential burden on a defendant is 

justifiable. 

Overview 

1.19 This bill seeks to amend the Environment Protection and Biodiversity 

Conservation Act 1999 to: 

• establish a matter of National Environmental Significance in relation to 

protection of water resources from coal seam gas or large coal mining 

development, to require environmental impact assessment and 

approval processes for actions relating to this development that may 

significantly impact on a water resource; and 

• to create civil penalty and offence provisions for taking actions 

involving coal seam gas or large coal mining development that may 

significantly impact on a water resource without approval (or without 

exemption from the need to obtain approval). 


1.20 The bill is accompanied by a self-contained statement of compatibility that 

states that the proposed new criminal offences, extension of the scope of application 

of existing offences, and strict liability engages the right to be presumed innocent 

under article 14(2) of the ICCPR. It concludes that the bill is compatible with human 

rights: 

because to the extent that it may limit human rights, those limitations are 

reasonable, necessary and proportionate to the objective of preventing 

people from taking actions involving coal seam gas development or large 

coal mining development that may have a significant impact on a water 

resource without an approval or exemption from obtaining an approval. 11 


Page 33 

1.21 The statement of compatibility does not identify any specific limitations on 

rights or provide any analysis of them, so it is difficult to see how the conclusion 

that any limitations are justified was reached. The assessment of whether a 

limitation on a right is permissible requires a contextual analysis which involves 

identification of: the encroachment on the right, the objective being pursued and 

its legitimacy, and the reasonableness and proportionality of the measures 

adopted to the achieving that goal. A general assertion that any limitations are 

justified without such detailed analysis is not sufficient for the purposes of 

justifying restrictions on the enjoyment of human rights. 

Right to respect for one’s home/right to health/right to water 

1.22 The bill may be viewed as promoting the enjoyment of a number of rights 

not mentioned in the statement of compatibility. The committee has already 

considered the issue of proposed regulation of coal seam gas mining and identified a 

number of rights that may be engaged, 12 including: 

• the right of persons not to have their homes unlawfully or arbitrarily 

interfered with under article 17 of the ICCPR. International human 

rights law has accepted that this right can provide some protection 

against pollution that affects a person’s quiet enjoyment of their home 

and also extends to any damage to residential property caused by 

subsidence that might result from such mining; 

• the right of persons to the highest attainable standard of health 

guaranteed by article 12 of the International Covenant on Economic, 

Social and Cultural Rights (ICESCR), to the extent that the bill seeks to 

address concerns about pollution; and 

• the right to an adequate standard of living (including the right to water) 

guaranteed by article 11 of the ICESCR, to the extent that it seeks to 

avoid contamination of water supplies. 

Civil penalty provisions as involving ‘criminal’ charges 

1.23 The bill proposes inserting a new Subdivision FB into Division 1 of Part 3 of 

the Environment Protection and Biodiversity Conservation Act 1999. The proposed 

new Subdivision creates a number of criminal offences and civil penalty provisions. 13 

Both relate to the same conduct. 

1.24 The criminal offences created by proposed new section 24E are punishable 

by a maximum penalty of 7 years’ imprisonment or 420 penalty units (currently 

12 See PJCHR, Third Report of 2013, pp 75-76 (discussing the Environment Protection and 

Biodiversity Conservation Amendment (Moratorium on Aquifer Drilling Connected with Coal 

Seam Gas Extraction) Bill 2013)). 

13 See proposed new sections 24E and 24D.

Page 34 

$71,400), or both. The criminal offence provisions also impose an evidential burden 

on a defendant in relation to a number of issues. 

1.25 The civil penalty provisions provide for different maximum penalties for 

individuals and corporations. These penalties are significant: the maximum penalties 

that may be imposed under the civil penalty provisions in the proposed new 

section 24D are 5,000 penalty units (currently $850,000) for an individual and 50,000 

penalty units for a body corporate (currently $8.5 million). 

1.26 While the civil penalty provisions are designated as ‘civil’ penalties for the 

purposes of Australian law, they may nonetheless qualify as ‘criminal’ offences for 

the purposes of human rights law, if they meet certain criteria. If so, they would 

attract the procedural and other protections guaranteed under articles 14 and 15 of 

the ICCPR in relation to the determination of criminal charges. 

1.27 In determining whether the imposition of a penalty for particular conduct 

involves the determination of a ‘criminal charge’, international jurisprudence has 

identified the following factors to be taken into account: the classification of the act 

in domestic law, the nature of the offence, the purpose of the penalty, and the 

nature and the severity of the penalty. Classification as ‘civil’ under Australian law is 

not determinative. Where a prohibition is general in application, where the penalty is 

punitive and intended to deter (rather than award compensation for loss), and any 

financial penalty is significant, it may well be classified as involving a criminal charge 

and penalty for the purposes of article 14 of the ICCPR. 

Right to be presumed innocent - evidential burden 

1.28 The imposition of an evidential burden on a defendant in relation to the 

matters set out in proposed new section 24E(4), which provide a defence to the 

offences created by proposed section 24E, encroaches on the right to be presumed 

innocent guaranteed by article 14(2) of the ICCPR. A specific justification of this 

provision is required. 

1.29 Proposed new section 24D(4) also imposes an evidential burden in relation 

to certain matters that constitute a defence to a proceeding alleging a violation of 

the civil penalty provisions contained in proposed new section 24D. If these civil 

penalties provisions are considered ‘criminal’ for the purposes of article 14 of the 

ICCPR, it is necessary to justify the encroachment on the right to be presumed 

innocent in article 14(2) of the ICCPR. 

1.30 The committee intends to write to the Minister for Sustainability, 

Environment, Water, Population and Communities to: 

(a) seek clarification as to why the proposed civil penalty provisions in 

the bill should not be considered 'criminal charges' for the purposes of 

articles 14 and 15 of the ICCPR in light of the significant penalties that 

may be imposed for breach of those provisions; and

Page 35 

(b) ask how the imposition of an evidential burden on a defendant under 

proposed new sections 24D and 24E is justifiable.

Page 36 

Financial Framework Legislation Amendment Bill 

(No. 2) 2013 


Portfolio: Finance and Deregulation 


1.31 The committee requires further information on the purpose and effect of the 

amendments relating to recoverable payments and the exclusion of the right of 

review in relation to social security payments before it can form a view on the 

compatibility of the bill with the right to social security. 

Overview 

1.32 This bill seeks to amend a number of Acts as follows: 

• amends the Financial Management and Accountability Act 1997 (FMA 

Act) to allow the Commonwealth to form or participate in the 

formation of companies, and contains transitional provisions in relation 

to existing Commonwealth companies and to validate the 

Commonwealth's role in forming or acquiring shares in existing 

Commonwealth companies. This follows from the High Court's decision 

in Williams v Commonwealth [2012] HCA 23 which considered the 

limits of the Commonwealth's executive government. The explanatory 

memorandum states that the proposed amendments 'are designed to 

put beyond any argument the capacity of the Executive Government to 

form or participate in the formation of companies'; 14 

• amends the Administrative Decisions (Judicial Review) Act 1977 (ADJR 

Act) to include decisions made under the proposed amendment to the 

FMA Act in the relevant schedule of decisions not subject to review 

under that Act given the policy nature of such decisions; and 

• amends the Social Security Act 1991 (in relation to payments made 

under the Australian Government Disaster Recovery Payments 

scheme), the Judges’ Pensions Act 1968 and the Remuneration Tribunal 

Act 1973 to establish a 'recoverable payments' framework for dealing 

with administrative overpayments, and to address instances where the 

relevant agency makes payments that are not, in practice, consistent 

with the requirements or pre-conditions imposed by legislation. 

• transfers realised capital losses from the Military Superannuation and 

Benefits Fund (MSBF) to the ARIA Investments Trust, following the 

14 See explanatory memorandum, p 5.

Page 37 

transfer of assets that occurred in May 2012. This is to ensure that 

losses do not remain with the MSBF when they cannot be used to offset 

future capital gains of the Fund as all of the Fund's assets have been 

transferred to the ARIA Investments Trust. 


1.33 The bill is accompanied by a statement of compatibility that forms part of the 

explanatory memorandum that states that the proposed amendments 'do not limit 

any human rights, nor propose any offences or penalties' and the bill is therefore 

compatible with human rights. 

1.34 The explanatory memorandum gives some more explanation of the 

provisions that exclude review rights under the ADJR Act. It explains that exempt 

from review are decisions made by the Commonwealth how to form or participate in 

forming companies. These 'would be policy decisions regarding how the 

Commonwealth organises its bodies and governance arrangements'. As such, these 

decisions would be 'administrative in nature and would not impact upon the 

interests of an individual'. 15 In light of this explanation in the explanatory 

memorandum the committee makes no comment on the provisions that exempt 

review under the ADJR Act. 

Right to social security 

1.35 A number of amendments in the bill provide that where a benefit was 

mistakenly paid or paid to someone who had died prior to the payment being made, 

those benefits become a debt due to the Commonwealth that may be recovered in a 

court of competent jurisdiction. These amendments may engage article 9 of the 

International Covenant on Economic, Social and Cultural Rights (ICESCR) which 

recognises the right to social security. 

1.36 In particular, benefits paid under the Social Security Act 1991 would appear 

to fall within the term 'social security' under article 9 of the ICESCR. The UN 

<strong>Committee</strong> on Economic, Social and Cultural Rights has stated that this term covers 

the risks involved in the loss of a means of subsistence for reasons beyond a person's 

control and encompasses the right to access and maintain benefits, whether in cash 

or in kind in order to secure protection from (a) lack of work-related income, (b) 

unaffordable healthcare, or (c) insufficient family support. 16 

1.37 The bill provides that in relation to decisions made under the amendments 

relating to recoverable payments, these decisions are not reviewable under Part 4 of 

the Social Security (Administration) Act 1999. 17 Part 4 of that Act provides for internal 


16 UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No. 19, para 2. 

17 See Schedule 1, Part 2, proposed new section 1061PAAD.

Page 38 

review and review by the Social Security Appeals Tribunal or the Administrative 

Appeals Tribunal. No explanation is given as to why it is necessary to remove this 

right of review. 

1.38 The UN <strong>Committee</strong> on Economic, Social and Cultural Rights has noted that 

remedies should be made available for alleged violations of economic, social or 

cultural rights. While these may be judicial or administrative, 18 as a matter of 

principle, effective remedies of an appropriate sort must be provided: 

The Covenant contains no direct counterpart to article 2.3(b) of the 

International Covenant on Civil and Political Rights which obligates States 

parties to, inter alia, ‘develop the possibilities of judicial remedy’. 

Nevertheless, a State party seeking to justify its failure to provide any 

domestic legal remedies for violations of economic, social and cultural 

rights would need to show either that such remedies are not ‘appropriate 

means’ within the terms of article 2.1 of the Covenant or that, in view of 

the other means used, they are unnecessary. It will be difficult to show this 

and the <strong>Committee</strong> considers that, in many cases, the other “means” used 

could be rendered ineffective if they are not reinforced or complemented 

by judicial remedies. 19 

1.39 Removing the right to review under the Social Security (Administration) 

Act 1999 in relation to these new provisions also engages the right to a fair hearing 

under article 14(1) of the International Covenant on Civil and Political Rights (ICCPR). 

Decisions about social security benefits have been found to come within the 

definition of 'rights and obligations' under article 14(1) of the ICCPR and therefore 

any restriction on the right to review should be justified. The restriction may also be 

inconsistent with the right of a person to an appropriate administrative or judicial 

remedy in relation to alleged violations of economic rights such as the right to social 

security guaranteed by article 9 of the ICESCR. 

1.40 The committee requires further information on the purpose and effect of 

the amendments relating to recoverable payments and the exclusion of the right of 

review in relation to social security payments before it can form a view on the 

compatibility of the bill with the right to social security. The committee intends to 

write to the Minister for Finance and Deregulation to ask for clarification. 

18 UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No 9 (1998), 

para 9. 

19 Ibid, para 3.

Page 39 

Foreign Affairs Portfolio Miscellaneous Measures Bill 2013 


Portfolio: Foreign Affairs 


1.41 The committee seeks further information as to why it is necessary to enable 

the Director-General of the Australian Secret Intelligence Service (ASIS) to disapply 

any provision of the Work Health and Safety Act 2011 and whether there would be 

any less restrictive means available to achieve the stated objective. 

Overview 

1.42 This bill seeks to amend the Intelligence Services Act 2001 and the Work 

Health and Safety Act 2011 to: 

• create a mechanism for Australian Secret Intelligence Service (ASIS) 

employees to move to an Australian Public Service (APS) agency in the 

same way that APS employees can voluntarily transfer from one APS 

agency to another under section 26 of the Public Service Act 1999 (the 

PS Act); 

• enable the Director-General of ASIS, with Ministerial approval, to make 

a declaration that specified provisions of the Work Health and Safety 

Act 2011 do not apply, or apply subject to modification in relation to 

persons carrying out work for the Director-General of ASIS. 



identifies that the bill engages the right to work under articles 6 and 7 of the 

International Covenant on Economic, Social and Cultural Rights (ICESCR). 

1.44 Article 6 of the ICESCR recognises the right to work and 'the right of everyone 

to the opportunity to gain his living by work which he freely chooses or accepts' and 

article 7 recognises the right of everyone to the 'just and favourable conditions of 

work' which includes ensuring 'safe and healthy working conditions'. 

1.45 The amendments which create a mechanism for ASIS employees to move to 

an APS agency in the same way that APS employees can do, promotes the right to 

work as it broadens the opportunities for ASIS employees to choose the type of work 

they wish to do. 

1.46 In contrast, the amendments to the Work Health and Safety Act 2011 

(WHS Act) appear to limit the right to work under article 7 of the ICESCR, in particular 

the right to 'safe and healthy working conditions' of work. The statement of 

compatibility explains this limitation in this way:

Page 40 

While on its face these amendments may appear to restrict the right to 

safe and healthy work conditions, these amendments are intended to 

provide legal clarification to the operation of existing provisions of the 

WHS Act to people who perform work for the Director-General of ASIS. 

Section 12C of the WHS Act already provides that nothing in that Act 

requires or permits a person to take any action or refrain from taking any 

action that would be, or could reasonably be expected to be, prejudicial to 

national security. This is a long standing component of work health and 

safety obligations in Australia, as an identical provision existed in the 

predecessor to the WHS Act, the Occupational Health and Safety Act 1991. 

However, currently under section 12C of the WHS Act, the Director- 

General of ASIS is unable to make a declaration that specified provisions of 

the WHS Act do not apply, or apply subject to modifications set out in the 

in declaration, in relation to persons carrying out work for him or her. This 

means legal uncertainty currently exists around the application of section 

12C to people who perform work for the Director-General of ASIS. These 

amendments will provide this certainty. 20 

1.47 The statement of compatibility goes on to note that the existing provisions of 

the WHS Act enable the Australian Security Intelligence Organisation (ASIO) and the 

Australian Defence Force (ADF) to declare by instrument that provisions of the WHS 

Act do not apply to persons carrying out work for ASIO or the ADF. 21 It goes on to 

state: 

The circumstances in which ASIS operates overseas are very similar to 

those faced by ASIO and the ADF. These circumstances mean that the 

requirements of national security may not always be compatible with full 

compliance with all the obligations under the WHS Act. Indeed full 

compliance could in some circumstances place people who work for the 

Director-General of ASIS at risk and prejudice national security. 22 

1.48 The statement of compatibility concludes that the bill is compatible with 

human rights as it promotes the right to work and 'will provide legal clarification to 

existing work health and safety obligations'. However, describing other like 

organisations that have access to this exemption and arguing the need for legal 

certainty does not explain whether this is a reasonable and proportionate limitation 

on the right to work. 

1.49 In addition, a number of provisions of the WHS Act relate to workplace 

representation and consultation and the role of trade unions in promoting work 

health and safety. The objects of the WHS Act state that the Act is intended to secure 

the health and safety of workers and workplaces, including by: 


21 See sections 12C and 12D of the Work Health and Safety Act 2011. 


(b) providing for fair and effective workplace representation, consultation, 

co-operation and issue resolution in relation to work health and safety; 

and 

(c) encouraging unions and employer organisations to take a constructive 

role in promoting improvements in work health and safety practices, and 

assisting persons conducting businesses or undertakings and workers to 

achieve a healthier and safer working environment… 23 

Page 41 

1.50 Enabling the Director-General of ASIS to declare in an instrument that any 

provision of the WHS Act does not apply, or applies subject to modification, would 

allow the Director-General to declare that unions do not have the right to make 

representations. This therefore would engage the right to freedom of association and 

the rights of trade unions under article 22 of the International Covenant on Civil and 

Political Rights (ICCPR) and article 8 of the ICESCR. 

1.51 In addition, in enabling the Director-General of ASIS to declare any provision 

of the WHS Act to not apply to people carrying out work for ASIS, could potentially 

lead to highly dangerous work places and therefore raise issues around State 

obligations to promote the right to life under article 6 of the ICCPR. 

1.52 The committee accepts that seeking to protect national security is a 

legitimate objective. However, the Minister has not explained why giving such 

broad powers to the Director-General to exempt all people performing work for 

ASIS, including those working in offices in Australia, from the entirety of the WHS 

Act is a reasonable and proportionate limitation on the right to work, the rights to 

representation by trade unions and the right to life. 

1.53 The committee intends to write to the Minister for Foreign Affairs and ask 

for further information as to why it is necessary to enable the Director-General of 

ASIS to disapply any provision of the WHS Act and whether there would be any less 

restrictive means available to achieve the stated objective. The committee would 

be aided in its consideration of this if examples were given – on a confidential basis 

if necessary – as to the likely circumstances in which the Director-General would 

use this power. 

1.54 The committee also intends to write to the Minister for Foreign Affairs to 

ask for clarification as to whether omitting provisions of the WHS Act in relation to 

people working for ASIS would have any effect on any worker's compensation 

claims those employees might have for any workplace injuries or diseases. 

23 Section 3 of the Work Health and Safety Act 2011.

Page 42 

International Organisations (Privileges and Immunities) 

Amendment Bill 2013 

Introduced into the Senate on 13 March 2013 

Portfolio: Foreign Affairs 


1.55 The committee seeks clarification as to whether the government considers 

that Australia may not grant immunity to a former official of an international 

organisation or foreign state in relation to criminal proceedings concerning alleged 

acts of torture and if so, whether any legislative amendments are proposed to reflect 

this position. 

Overview 

1.56 This bill seeks to amend the International Organisations (Privileges and 

Immunities) Act 1963 (the Act) to enable regulations to be made that would confer 

privileges and immunities on the International <strong>Committee</strong> for the Red Cross (ICRC) 

and the International Criminal Court (ICC). 

1.57 Currently the Act allows privileges and immunities to be conferred on 

'international organisations' and 'overseas organisations' – which is too narrow a 

definition to apply to the independent and non-intergovernmental character of the 

ICRC. The Act also currently allows privileges and immunities to be conferred on 

'international tribunals', such as the International Criminal Court, however, it does 

not refer to victims participating in proceedings before such tribunals. This bill would 

amend the Act to confer privileges and immunities on the ICRC in accordance with an 

Agreement between Australia and the ICRC and on the ICC in accordance with the 

Agreement on Privileges and Immunities of the ICC. 



explains the background to the bills and their effect. The statement does not refer to 

any specific human rights but concludes: 

The Bill extends the operation of the IOPI Act to two further organisations 

without changing the nature of the regime established by the Act. The Bill 

is compatible with human rights as it does not raise human rights issues, 

has no adverse implications for the Government’s compliance with its 

human rights obligations and does not adversely affect the human rights 

of individuals. 24 


Page 43 

1.59 The bill will provide a basis for enhanced cooperation with the ICRC and ICC, 

both of which play significant roles in, among other things, promoting and 

implementing respect for human rights and the rule of law. To this extent, the bill 

should contribute to the advancement of human rights. 

1.60 The committee acknowledges the important contribution that both the ICC 

and the ICRC have made in relation to the advancement of the rule of law, and to 

the provision of redress for those who have been subjected to international crimes 

and violations of international humanitarian law. To the extent that the bill 

enhances the ability of these two bodies to carry out their work, it may be viewed 

as promoting the enjoyment of many of the rights contained in the conventions 

which are listed in the Human Rights (<strong>Parliamentary</strong>) Scrutiny Act 2011. 

1.61 At the same time the bill gives rise to a number of human rights issues that 

are not addressed in the explanatory memorandum or statement of compatibility. 

These relate in particular to the implications of the bill for the right to a fair hearing 

guaranteed by article 14(1) of the International Covenant on Civil and Political Rights 

(ICCPR) and also for the positive obligations of Australia under other provisions of the 

ICCPR and the other human rights treaties. These obligations require Australia to 

ensure that individuals whose rights are violated by other individuals have access to 

a remedy before courts, tribunals or other appropriate authorities. They may also 

require that persons who commit serious violations of human rights are subject to 

criminal investigation and prosecution. Apart from these general obligations, under 

the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading 

Treatment or Punishment, Australia has accepted specific obligations to investigate 

and prosecute (or extradite) alleged torturers who are in its territory. 

1.62 While the changes proposed by the bill give rise to these issues, they are not 

specific to the two organisations covered by the bill. The points are of general 

application, both in relation to the privileges and immunities conferred on 

international organisations and their officials under the International Organisations 

(Privileges and Immunities) Act 1963, and to those conferred on States, and their 

officials and representatives (including diplomatic and consular officials) under 

various statutes. 25 

Preliminary matter – the agreement with the ICRC 

1.63 The explanatory memorandum states that the purpose of the amendments 

insofar as they relate to the ICRC is to give effect to a memorandum of 

understanding between Australia and the ICRC. 26 Although it appears from the bill 

that a copy of this Agreement will be included in the regulations to be made under 

25 These include the Foreign States Immunities Act 1985, the Diplomatic Privileges and 

Immunities Act 1967, and the Consular Privileges and Immunities Act 1972. 

26 Arrangement between the Government of Australia and the International <strong>Committee</strong> for the 

Red Cross on a Regional Headquarters in Australia.

Page 44 

the Act, 27 a copy of that agreement was not provided with the bill or the explanatory 

memorandum. Nor does there appear to be a readily accessible online text of the 

Agreement on departmental websites, or on the Australian Treaties Library on the 

Australasian Legal Information Institute (AUSTLII). 

1.64 Without access to the text of the Agreement, the committee does not know 

the extent of the privileges and immunities proposed to be conferred on the ICRC. 

The extent and nature of those privileges and immunities to be conferred may affect 

the committee’s assessment of whether the bill is compatible with human rights. 

1.65 The committee notes that it would assist the committee in its examination 

of bills giving effect to international agreements, memoranda of understanding or 

other international instruments if a copy of the text of such documents were 

provided to the committee where the document is not readily accessible on the 

internet. 

1.66 The committee intends to write to the Minister for Foreign Affairs to: 

(a) request a copy of the Agreement between Australia and the ICRC to 

which the bill gives effect; and 

(b) recommend to the Minister that this document and other memoranda 

of understanding that may have relevance to human rights be made 

publicly available on the Internet, whether on the Department’s 

website or in a separate section of the Australian Treaties Library on 

AUSTLII. 

Australia’s obligations in relation to the conferral of privileges and immunities on 

international organisations and foreign States and their officials 

1.67 The granting of privileges and immunities to international organisations such 

as the ICC is commonly accepted practice in international law. Australia is bound 

under a number of multilateral and bilateral treaties to confer privileges and 

immunities on various international organisations and their officials, as well as on 

foreign States and their diplomatic and consular representatives. The extent of the 

privileges and immunities conferred varies among the different categories of 

conferee (a diplomatic representative has more extensive immunities than a consular 

official, for example). Immunity may also apply in the case of a former official, 

though it will be normally be less extensive than the immunity enjoyed by a serving 

official. Under customary international law Australia is also under additional 

27 The bill proposes the insertion of a definition of ‘ICRC Arrangement’ in subsection 3(1) of the 

Intentional Organisations (Privileges and Immunities) Act 1963 in the following terms: 

‘ICRC Arrangement means the Arrangement Between The Government of 

Australia and The International <strong>Committee</strong> of the Red Cross (“ICRC”) On a 

Regional Headquarters in Australia, done at Canberra on 24 November 2005 (a 

copy of the text of which is set out in the regulations).’

Page 45 

obligations to afford immunity to certain types of high-level foreign officials, both 

while they are in office and, to a lesser extent, after they have left office. 

1.68 While it is not clear exactly which privileges and immunities are to be 

conferred on the ICC and the ICRC, they will be drawn from standard lists in the 

Schedules to the International Organisation (Privileges and Immunities) Act 1963. 

They are likely to involve the exclusion of the jurisdiction of the courts in criminal 

matters and many civil matters, and may also limit the execution of Australian and 

overseas judgments against certain assets. 

1.69 The granting of immunities to international organisations and officials and 

employees of such organisations, involves an exclusion of the jurisdiction of 

Australian courts in certain criminal and civil cases. It thus involves a significant 

encroachment on the enjoyment of the right of access to court guaranteed by 

article 14 of the ICCPR. The type of cases in in which issues of immunity commonly 

arise are where a person who enjoys immunity invokes that immunity to prevent the 

bringing of a criminal charge, to resist the enforcement compulsive powers of courts, 

or to prevent a person from bringing a civil action against a State or international 

organisation in relation to alleged wrongs (such as violation of the terms of an 

employment contract). In addition, the restriction on the use of normal law 

enforcement powers may also impede the ability of public authorities to take 

positive measures to promote the enjoyment of rights (for example, in the 

investigation of alleged criminal acts). 

Immunity as a permissible restriction on the right of access to court 

1.70 Restrictions on the right of access to court are permissible under the ICCPR if 

these are a reasonable and proportionate measure adopted in the pursuit of a 

legitimate objective. The granting of immunity to State officials and international 

organisations under national law has been challenged without success on a number 

of occasions before international courts as inconsistent with the right of access to 

courts. 28 In recent years challenges have been based on the argument that there is a 

‘human rights exception’ to the granting of immunity where a person is accused of a 

serious human rights violation (in particular an international crime such as torture). 29 

While the issue is controversial and the law continues to evolve, it cannot be said 

that a ‘human rights exception’ to immunity has become part of international law. 30 

28 See, eg, European Court of Human Rights, Cudak v Lithuania, App no 15869/02 [2010] ECHR 

370 (23 March 2010). 

29 See, eg the judgment of an evenly divided European Court of Human Rights holding that 

granting of immunity from suit in a civil torture case was not inconsistent with the right of 

access to court, Al Adsani v United Kingdom, App no 35763/97 [2001] ECHR 761 (21 November 

2001). 

30 See, eg, the rejection of this argument by the House of Lords in Jones v Ministry of the Interior 

of the Kingdom of Saudi Arabia and another [2007] 1 AC 270.

Page 46 

1.71 However, in one respect there appears to have been a significant inroad 

made into the immunity from criminal proceedings enjoyed by certain former 

officials of States (and by extension international organisations); these include heads 

of state and high officials, as well as diplomatic representatives. These officials are 

generally immune from criminal and civil process while in office, 31 but enjoy more 

limited immunity after they step down from that position. At that stage they enjoy 

immunity before the courts of other countries only in relation to acts undertaken in 

their capacity as a high-level official or diplomatic representative. It is a matter of 

some debate whether this immunity does (or should) extend to human rights 

violations undertaken as a state policy. 

Impact of the Convention against Torture on the immunity of a former official 

1.72 In one respect, however, this immunity may have been limited as a result of 

the Convention against Torture. In the Pinochet case the House of Lords considered 

an extradition request for the surrender of the former President of Chile to face a 

number of charges of torture. 32 As a former head of state, Pinochet enjoyed 

immunity for acts undertaken in his capacity as President of Chile. The House of 

Lords held that, even if the alleged acts of torture had been performed in his capacity 

as President, the effect of the Convention against Torture was that this immunity was 

abrogated in relation to alleged acts of torture as defined in that convention and to 

which the convention applied temporally. 

1.73 The UN <strong>Committee</strong> against Torture was of a similar view in relation to the 

effect of the Torture Convention on the immunity of former foreign state officials in 

the Pinochet case 33 and in other cases. 

1.74 As a State party to the Convention against Torture, Australia thus appears to 

have an obligation to investigate and prosecute such cases of torture as defined in 

the Convention if an alleged torturer is found in Australia. This is so, even in a case 

where the person may have enjoyed immunity from criminal proceedings in Australia 

and continues to enjoy immunity in relation to acts carried out in the person’s official 

capacity. 

31 See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. 

Belgium), International Court of Justice, Judgment of 14 February 2002 (immunity from 

criminal process of serving high-level official). 

32 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No3) [2000] 1 

AC 147. 

33 See the <strong>Committee</strong>’s views expressed in its discussions with the UK government 

(CAT/C/SR.354, paras 39-40, 46) and in its concluding observations on the United Kingdom’s 

third periodic report (CAT/C/SR.360, para 11 and CAT A/54/44, para 77(f) (1999)). A similar 

view is reflected in the <strong>Committee</strong>’s decision in the case of Guengueng v Senegal, Comm. No 

181/2001, A/61/44, at 160 (2006) (failure by Senegal to prosecute the former head of state of 

Chad involved violation of the Torture Convention).

Page 47 

1.75 The developments in the Pinochet case and other international 

developments have not been reflected in any amendment to the International 

Organisations (Privileges and Immunities) Act 1963, or the corresponding legislation 

relating to diplomatic and consular privileges and immunities. It is thus not clear 

whether under Australian law a person in respect of whom Australia has a Torture 

Convention obligation to investigate and prosecute allegations of torture may be 

able to rely on the provisions of existing legislation to plead immunity from such 

criminal investigation and prosecution. 

1.76 The committee intends to write to the Minster for Foreign Affairs to seek 

clarification: 

(a) whether Australia considers that, in conformity with the views of the 

House of Lords and of the UN <strong>Committee</strong> against Torture, Australia 

may not grant immunity to a former official of an international 

organisation or foreign state in Australia in relation to criminal 

proceedings concerning alleged acts of torture as defined in the 

Convention against Torture; and 

(b) if so, whether any legislative amendments are proposed to reflect this 

position, in particular to the International Organisation (Privileges 

and Immunities) Act 1963, the Diplomatic Privileges and Immunities 

Act 1967, and the Consular Privileges and Immunities Act 1972.

Page 48 

Social Security and Other Legislation Amendment 

(Caring for Single Parents) Bill 2013 


By: Senator Siewert 


1.77 The committee seeks further information in relation to how the differential 

treatment of different groups of Newstart recipients is justifiable and consistent with 

the rights to equality and non-discrimination. 

Overview 

1.78 This bill seeks to: 

• amend the Social Security Act 1991 to provide for: 

- a $40 a week supplementary payment for single parents receiving 

Newstart payments; and 

- the income test for single parents receiving Newstart to be the 

same as the income test for single parents receiving Parenting 

Payment. 

• amend the Fair Work Act 2009 to provide for an enforceable right to 

request flexible work arrangements for people with caring 

responsibilities, including single parents. 



provides that the bill engages the right to social security under article 9 of the 

International Covenant of Economic, Social and Cultural Rights (ICESCR) and the right 

to work under articles 6 and 7 of the ICESCR. 

Right to social security 

1.80 The statement of compatibility provides: 

The Bill will promote the right to social security by increasing the amount 

of financial support for certain recipients of Newstart and providing a 

more appropriate income test for single parents. 34 

1.81 In relation to this aspect of the bill, the amendments may also be seen as 

contributing to the enjoyment of the right to an adequate standard of living which is 

guaranteed by article 11 of the ICESCR. 



Page 49 

1.82 Similarly to the committee's comments in its Third Report of 2013 35 , applying 

the proposed increases only to single parents (and not partnered parents) raises the 

issue of equality and non-discrimination in the enjoyment of rights. 36 As single 

parents are being treated differently on the basis of their 'status' as a single parent, 

this differential treatment must be demonstrated to have an objective and 

reasonable justification to be consistent with the rights to equality and nondiscrimination. 

The statement of compatibility does not state why single parents are 

to be selected for increased payments over other groups. The second reading speech 

for the bill gives some clue, as Senator Siewert stated 'Single parent families living on 

Newstart are the most disadvantaged families in Australia'. However, no evidence is 

given to show that this is the case or to demonstrate that single parents are worse 

off than partnered parents or people without children. 

1.83 The committee intends to write to Senator Siewert to seek further 

information in relation to how the differential treatment of different groups of 

Newstart recipients is justifiable and consistent with the rights to equality and nondiscrimination. 

Right to work 

1.84 In relation to the provisions of the bill that would enable people with caring 

responsibilities to have an enforceable right to request flexible work arrangements, 

the statement of compatibility provides: 

The Bill will promote the right to work by providing additional rights to 

carers for flexible work arrangements to ensure they can stay in 

employment. 37 

1.85 The UN Economic, Social and Cultural Rights <strong>Committee</strong> has stated that 

States parties to the ICESCR should adopt national employment strategies that 'must 

take particular account of the need to eliminate discrimination in access to 

employment' 38 and: 

Private enterprises - national and multinational - while not bound by the 

Covenant, have a particular role to play in job creation, hiring policies and 

non-discriminatory access to work. 39 

35 See PJCHR, Third Report of 2013, pp 52-53, relating to the Social Security Legislation 

Amendment (Caring for People on Newstart) Bill 2013. 

36 As guaranteed by article 2(1) of ICESCR and article 26 of the International Covenant on Civil 

and Political Rights which guarantee equality and non-discrimination in the enjoyment of 

human rights. 

37 Ibid. 

38 CESCR, General Comment No. 18: The Right to Work, E/C.12/GC/18, para 44. 

39 Ibid para 52.

Page 50 

1.86 The bill, in providing a right for an employee with caring responsibilities to 

request flexible work arrangements, appears to promote the right to work under 

articles 6 and 7 of the ICESCR.

Page 51 

<strong>Parliamentary</strong> Service Amendment (<strong>Parliamentary</strong> Budget 

Officer) Bill 2013 


Portfolio: Treasury 


1.87 The committee seeks clarification as to why the <strong>Parliamentary</strong> Budget Officer 

(PBO) requires access to information capable of identifying taxpayers when 

conducting costings on political policy proposals, before making an assessment on 

the compatibility of these measures with the right to privacy. 

Overview 

1.88 This bill seeks to amend the <strong>Parliamentary</strong> Service Act 1999 to give the 

<strong>Parliamentary</strong> Budget Officer (PBO) additional functions to prepare reports on the 

costings and total combined impact of publicly announced policies made during an 

election campaign by <strong>Parliamentary</strong> parties. The bill sets out a framework for the 

provision of information to the Officer. 

1.89 The bill also seeks to amend the Taxation Administration Act 1953 to allow 

the Australian Tax Office (ATO) to provide taxpayer information to the <strong>Parliamentary</strong> 

Budget Officer on a confidential basis to assist the Officer to perform or exercise his 

or her functions or powers. Currently the ATO is precluded from making a record of, 

or disclosing, information which could identify taxpaying entities. Under these 

amendments information could be disclosed to the Officer that would identify 

taxpaying entities. 



notes that the provisions authorising the ATO to disclose personal information that it 

has collected, engages the right to privacy under article 17 of the International 

Covenant on Civil and Political Rights (ICCPR). 

1.91 The committee also notes that the bill, in providing that the PBO publicly 40 

release a report on the costings and total combined impact of publicly announced 

policies made during an election campaign by <strong>Parliamentary</strong> parties, appears to 

promote the right of citizens to participate in political and public life as guaranteed 

by article 25 of the ICCPR. 

40 See proposed section 64MC.

Page 52 

Right to privacy 

1.92 Article 17 of the ICCPR provides that no one 'shall be subjected to arbitrary 

or unlawful interference with his privacy, family, home or correspondence'. The 

statement of compatibility notes that the bill may limit the right to privacy but 

justifies this on the following basis: 

Allowing the ATO to disclose personal information to the Officer will 

enhance the integrity of the PBO’s revenue costings and analyses, which in 

turn, will help promote and inform fiscal policy debate in Australia. 

Furthermore, given that the Officer would only receive information for the 

purpose of performing or exercising his or her functions or powers under 

the PS Act, and is prohibited from on-disclosing this information, disclosing 

such information to the Officer would not constitute unlawful or arbitrary 

interference. 41 

1.93 Personal taxation information can contain significant personal information, 

including the person's name, occupation, earnings, deductions sought etc. Providing 

such information to another person limits the right not to be subjected to arbitrary 

or unlawful interference with one's privacy as provided by article 17 of the ICCPR. 

The committee accepts that promoting and informing the fiscal policy debate in 

Australia is a legitimate objective. However, neither the statement of compatibility 

nor the explanatory memorandum explain why providing such personal information 

in an identifiable way to the <strong>Parliamentary</strong> Budget Officer is necessary. 

1.94 The committee intends to write to the Treasurer to ask for clarification as 

to why the PBO requires access to information capable of identifying taxpayers 

when conducting costings on political policy proposals, before making an 

assessment on the compatibility of these measures with the right to privacy. 

41 See page 20 of the explanatory memorandum, and paras 3.5-3.6 of the statement of 

compatibility.

Bills unlikely to raise human rights incompatibility 

Aged Care (Bond Security) Amendment Bill 2013 

Aged Care (Bond Security) Levy Amendment Bill 2013 



Page 53 

1.1 The Aged Care (Bond Security) Amendment Bill 2013 seeks to amend the 

Aged Care (Bond Security) Act 2006 and the Aged Care (Bond Security) Levy 

Amendment Bill 2013 seeks to amend the Aged Care (Bond Security) Levy Act 2006. 

These bills form part of the legislative package that gives effect to the Living Longer 

Living Better reforms announced by the government in April 2012. 1 Under this 

package of legislation, it is intended that people who enter residential care or certain 

flexible care will, on a means tested basis, contribute to the cost of their 

accommodation – either through periodic payment, lump sum or a combination of 

both. For those that pay a lump sum, when they leave the aged care service the lump 

sum is to be refunded to the care recipient (less any allowable deductions). 

1.2 Both these bills seek to ensure that the same protections exist for care 

recipients who pay the new lump sums as those that currently exist for people who 

pay accommodation bonds under the existing legislation: 

• The Aged Care (Bond Security) Amendment Bill 2013 seeks to extend 

the operation of the existing Accommodation Bond Guarantee Scheme 

to these new lump sums. This Scheme provides a mechanism for the 

Commonwealth to repay existing outstanding bond balances to a care 

recipient if an approved provider becomes insolvent and is unable to 

refund bond balances owing to care recipients. 

• The Aged Care (Bond Security) Levy Amendment Bill 2013 seeks to 

ensure that if the Guarantee Scheme is triggered and the 

Commonwealth has to repay accommodation bonds or payments, the 

Commonwealth will be able to recover its costs by imposing a levy on 

approved providers (as it can currently do in relation to repayment of 

existing accommodation bonds) 

1 See also Aged Care (Living Longer Living Better) Bill 2013; Australian Aged Care Quality Agency 

Bill 2013; and Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013.

Page 54 


1.3 Both these bills are accompanied by self-contained statements of 

compatibility that state that the 'proposed amendments do not limit any human 

rights, nor propose any offences or penalties' and the bills are therefore 'compatible 

with human rights because it does not engage any of the applicable rights or 

freedoms'. 

1.4 The committee considers that these bills do not give rise to issues of 

incompatibility with human rights.

Australian Aged Care Quality Agency Bill 2013 

Australian Aged Care Quality Agency (Transitional 

Provisions) Bill 2013 



Page 55 

1.5 The Australian Aged Care Quality Agency Bill 2013 seeks to establish a new 

Australian Aged Care Quality Agency (the Agency) that will replace the existing Aged 

Care Standards and Accreditation Agency. The key measures contained in the bill are: 

• establishment of the new Agency as a prescribed agency under the 

Financial Management and Accountability Act 1997; 

• appointment of a Chief Executive Officer (CEO) with the following 

functions: 

- to accredit residential care services; 

- to conduct quality reviews of home care services; 

- to register quality assessors of residential and home care services; 

- to advise on services that do not meet standards and to promote 

high quality care, innovation and continuous improvement among 

providers of aged care; 

- to provide information, education and training to approved 

providers of aged care; and 

- other functions as prescribed; 

• establishment of an Aged Care Quality Advisory Council; 

• provision for the appointment processes for the CEO, staff and Council 

members; and 

• reporting requirements. 

1.6 This bill also includes offences for misusing protected information 

(information acquired in the course of the Agency's functions which is personal or 

relates to the affairs of an approved provider) and powers for the CEO to disclose 

protected information in certain circumstances. 

1.7 The Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 

seeks to transfer the assets and liabilities of the Aged Care Standards and 

Accreditation Agency Limited (ACSAA) to the Commonwealth on 1 January 2014 at 

the same time that the new Agency is established. It will replace to the ACSAA with 

references to the Commonwealth in any instrument, substitute the Commonwealth 

for ACSAA as a party to any legal proceedings, transfer staff and records to the

Page 56 

Commonwealth and deem applications made to ACSAA that have not been resolved 

to be applications to the new Agency. 


1.8 The bills are each accompanied by self-contained statements of 

compatibility. 

Australian Aged Care Quality Agency Bill 2013 

1.9 The statement of compatibility notes that the bill promotes the enjoyment of 

the right to the highest attainable standard of physical and mental health guaranteed 

by article 12 of the International Covenant on Economic, Social and Cultural Rights 

(ICESCR). 

1.10 In addition, the bill may also be viewed as promoting the right of a person to 

an adequate standard of living guaranteed by article 11 of the ICESCR and also the 

right to social security guaranteed by article 9 of the ICESCR. Other ICESCR rights may 

also be engaged. 2 The bill may also be viewed as promoting fulfilment of the positive 

obligations of the State under article 17 of the International Covenant on Civil and 

Political Rights (ICCPR), as well as a number of rights under the Convention on the 

Rights of Persons with Disabilities. 

Right to privacy 

1.11 The statement of compatibility notes that the bill engages the right to 

privacy in relation to personal data about individuals collected by staff of the Quality 

Agency in the performance of duties or the exercise of powers or functions under the 

proposed new Australian Aged Care Quality Agency Act 2013. The bill provides that 

the information may be disclosed only for a limited number of purposes and creates 

an offence of making a record of, disclosing or otherwise using protected information 

except for permitted uses. This offence is punishable by up to two years’ 

imprisonment. 3 

1.12 The CEO of the Quality Agency is permitted to disclose personal information 

in a limited range of circumstances in which it may be necessary to do so, for 

example to prevent or lessen a serious risk to the safety, health or well-being of a 

care recipient. 4 

1.13 An encroachment on the right to privacy may be justified if it is shown to be 

adopted for a legitimate objective, and is a reasonable and proportionate measure 

for the achievement of that objective. The disclosure of information for the purposes 

specified in the bill appear to be for legitimate purposes and the restrictions on 

2 See the discussion by the UN <strong>Committee</strong> on Economic, Social and Cultural Rights in its General 

Comment No 6 (1995) on the economic, social and cultural rights of older persons. 

3 Proposed new section 48 of the bill. 

4 Proposed new section 49 of the bill.

Page 57 

disclosure appear to be legitimate and proportionate to the achievement of that 

purpose. 

Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 

1.14 The statement of compatibility notes that the bill engages the right to 

privacy guaranteed by article 17 of the ICCPR. This is a result of the fact that the bill 

provides for the transfer of records of ACSAA which may contain personal 

information to the Commonwealth. Accordingly, the encroachment on the right to 

privacy must be justified as a reasonable and proportionate means of pursing a 

legitimate objective. 

1.15 The statement of compatibility states: 

Item 5 of Schedule 1 limits the range of records or documents that are to 

be transferred to those records or documents that relate to an asset or 

liability of ACSAA Limited that, by force of item 2 of Schedule 1 (when 

enacted), becomes an asset or liability of the Commonwealth. This ensures 

that only such information, including personal information, as is necessary 

to enable the Commonwealth to take over the functions of ACSAA Limited 

is required to be transferred. 

Any personal information that is transferred from ACSAA Limited to the 

Commonwealth will continue to be protected by the secrecy provisions in 

Division 86 of the Aged Care Act 1997 and will also be protected by the 

equivalent provisions in Part 7 of the Australian Aged Care Quality Agency 

Act 2013 (once enacted). These provisions include a penalty of 

imprisonment for two years for the offence of making a record of, 

disclosing or otherwise using protected information except for permitted 

uses. 5 

1.16 The purpose of the transfer is to facilitate the establishment of the new 

Australian Aged Care Quality Agency and to permit it to take over functions 

previously carried out by ACSAA. The purpose appears to be a legitimate one, and 

the safeguards which apply to the transferred records under the new Australian 

Aged Care Quality Agency Act 2013 appear to ensure that the use of those records 

will be appropriately limited and protected. 




Page 58 

Broadcasting Services Amendment (Material of Local 

Significance) Bill 2013 


By: Senator Xenophon 

1.18 This bill seeks to amend section 43A of the Broadcasting Services Act 1992 to 

include regional South Australia in the list of licence areas which require a regional 

aggregated commercial television broadcasting licence. In doing so, this area would 

be covered by the provisions in the Act that require television broadcasting licence 

holders to have specific local content requirements as set out by the Australian 

Communications and Media Authority (ACMA). 

1.19 Currently section 43A of the Broadcasting Services Act 1992 requires 

broadcasters in seven regional areas in New South Wales, Victoria, Queensland and 

Tasmania to have a condition on their licence requiring them to broadcast a 

minimum level of material of local significance. This does not apply to any regional 

areas in South Australia, Western Australia, the Northern Territory or the Australian 

Capital Territory. 

Compatibility with rights 


states: 

This Bill engages the right to enjoy and benefit from culture, as set out in 

article 27 of the International Covenant on Civil and Political Rights (ICCPR) 

and article 15 of the International Covenant on Economic, Social and 

Cultural Rights (ICESCR). 

The Bill seeks to maintain this right by ensuring that regional communities, 

beyond those already included in the Act, continue to have access to 

broadcasted content and material that is locally relevant and meaningful 

to them. 

1.21 Article 27 of the ICCPR provides that, where ethnic, religious or linguistic 

minorities exist, persons belonging to these minorities must not be denied the right, 

in community with the other members of their group, to enjoy their own culture, to 

profess and practise their own religion, or to use their own language. As the UN 

<strong>Committee</strong> has noted: 

this article establishes and recognizes a right which is conferred on 

individuals belonging to minority groups and which is distinct from, and 

additional to, all the other rights which, as individuals in common with 

everyone else, they are already entitled to enjoy under the Covenant. 

…

The protection of these rights is directed towards ensuring the survival and 

continued development of the cultural, religious and social identity of the 

minorities concerned, thus enriching the fabric of society as a whole. 6 

Page 59 

1.22 As article 27 of the ICCPR is directed to protecting the cultural, religious and 

social identities of minorities, applying the need for local content to all of Regional 

South Australia does not appear to fall within article 27's remit. 

1.23 However, article 15 of the ICESCR is much broader. It recognises the right of 

everyone to take part in cultural life. The UN <strong>Committee</strong> on Economic, Social and 

Cultural Rights has noted that this provides for a right of everyone: 

to know and understand his or her own culture and that of others through 

education and information, and to receive quality education and training 

with due regard for cultural identity. Everyone has also the right to learn 

about forms of expression and dissemination through any technical 

medium of information or communication… 7 

1.24 The committee agrees that the bill appears to promote the right of everyone 

to enjoy his or her culture in accordance with article 15 of the ICESCR. 



6 United Nations Human Rights <strong>Committee</strong>, General Comment No. 23: The rights of minorities 

(Art. 27), CCPR/C/21/Rev.1/Add.5, paras 1 and 9. 

7 United Nations <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No. 21: 

Right of everyone to take part in cultural life, para 15(b).

Page 60 

Citizen Initiated Referendum Bill 2013 


By: Senator Madigan 

1.26 This bill seeks to introduce a process by which a person on the Australian 

electoral roll can apply to register a proposal for a referendum to amend the 

Australian Constitution. The bill provides that if an elector registers a proposal with 

the Electoral Commission, the Commission decides that it is a proposal for a 

referendum to amend the Constitution and signatures of 1 per cent of the total of all 

electors are lodged with the Commission, then within four months after the proposal 

is verified by the Commission, the Minister must introduce a bill to amend the 

Constitution. If that bill is passed by Parliament a referendum is to be held in relation 

to that proposal. 



states that the bill is compatible with human rights and enhances and promotes the 

right to self-determination under article 1 of the International Covenant on Civil and 

Political Rights (ICCPR): 

Closing the gap between the people of Australia and their most important 

legal document, the Constitution, which rules them, enhances democracy 

and allows for a most transparent, dynamic and free Australia assists in 

attaining the requirement in Article 1 of the ICCPR that all Australian 

citizens are able to freely participate in their political system. 8 

1.28 The committee notes that under international human rights law the right to 

self-determination is a right enjoyed by 'peoples' under article 1 of the ICCPR and 


(ICESCR). The right is generally understood to apply to peoples who have been under 

colonial occupation or foreign domination. It thus relates more to the right of people 

to determine their political status and their place in the international community 

without outside interference and to ensure minority groups have appropriate 

political representation. The bill does not appear to engage this right – instead, it 

appears to the committee that the bill is likely to engage and promote the right to 

political participation under article 25 of the ICCPR. 

1.29 Article 25 of the ICCPR provides: 

Every citizen shall have the right and the opportunity, without any of the 

distinctions mentioned in article 2 and without unreasonable restrictions: 


(a) To take part in the conduct of public affairs, directly or through freely 

chosen representatives; 

(b) To vote and to be elected at genuine periodic elections which shall be 

by universal and equal suffrage and shall be held by secret ballot, 

guaranteeing the free expression of the will of the electors; 

(c) To have access, on general terms of equality, to public service in his 

country. 

Page 61 

1.30 Article 25 has been described as being 'at the core of democratic 

government based on the consent of the people'. 9 The UN Human Rights <strong>Committee</strong> 

has said that citizens not only directly participate in the conduct of public affairs 

when they are elected or hold executive office: 

Citizens also participate directly in the conduct of public affairs when they 

choose or change their constitution or decide public issues through a 

referendum or other electoral process conducted in accordance with 

paragraph (b). 

1.31 As this bill seeks to enable citizens to have more direct ways to initiate a 

referendum to seek to change the Australian Constitution, the bill appears to 

promote the right of political participation in article 25 of the ICCPR. 



9 UN Human Rights <strong>Committee</strong>, General Comment No. 25: The right to participate in public 

affairs, voting rights and the right of equal access to public service, para 1.

Page 62 

Insurance Contracts Amendment Bill 2013 



1.33 This bill seeks to amend the Insurance Contracts Act 1984 with the purpose 

of streamlining requirements and addressing anomalies in the regulatory framework 

of insurance contracts. In particular, the key features of the bill are measures to: 

• Remove impediments to the use of electronic communication for 

statutory notices and documents; 

• make the duty of disclosure easier for consumers to understand and 

comply with, especially at renewal of household/domestic insurance 

contracts; 

• make the remedies in respect of life insurance contracts more flexible; 

• clarify the rights and obligations of persons named in contracts as 

having the benefit of cover, but who are not parties themselves; and 

• clarify what types of contracts are exempt from its operation 

1.34 This bill follows on from a review of the Insurance Contracts Act 1984 that 

was released in 2004 10 which recommended some changes to the operation of the 

Act, extensive consultation with industry and consumer groups and the introduction 

of the Insurance Contracts Amendment Bill 2010 which lapsed due to the calling of 

the 2010 federal election. 



states that the bill 'does not engage any of the applicable rights or freedoms' and is 

therefore compatible with human rights. 

1.36 The bill, in setting out requirements relating to the disclosure of certain 

matters to insurance companies, may engage the right to privacy under article 17 of 

the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the 

ICCPR provides that no one 'shall be subjected to arbitrary or unlawful interference 

with his privacy, family, home or correspondence'. 

1.37 As this bill regulates the disclosure, or non-disclosure, of information made 

under private contracts to which people voluntarily enter into and accept the terms 

and conditions on entering into the contract, it does not appear that the disclosure 

requirements would arbitrarily interfere with the right to privacy. 

10 See the Review of the Insurance Contracts Act 1984 (Cth): Final report, Alan Cameron AM and 

Nancy Milne, 2004.

Page 63 



Page 64 

International Monetary Agreements Amendment Bill 2013 



1.39 This bill seeks to amend the International Monetary Agreements Act 1947 to 

provide a standing appropriation and authority to borrow for payments to meet 

drawings made by the International Monetary Fund (IMF) under a bilateral loan 

agreement between Australian and the IMF that was singed on 13 October 2012. 

Under the agreement the IMF may make drawings of loans from Australia only if its 

existing quota and New Arrangements to Borrow resources are insufficient to 

support its lending to borrowing member countries. 



states that the bill 'does not engage any of the applicable rights or freedoms' and is 

therefore compatible with human rights. 



Page 65 

Not-for-profit Sector Freedom to Advocate Bill 2013 


Portfolio: Finance and Deregulation 

1.42 This bill seeks to make an agreement between a Commonwealth agency and 

a not-for-profit (NFP) organisation void if it includes any requirement that restricts or 

prevents the organisation from commenting on, advocating support for or opposing 

a change to any Commonwealth law, policy or practice. In short, the bill seeks to 

prohibit the use of 'gag clauses' in NFP funding agreements by the Commonwealth. 


1.43 This bill is accompanied by a statement of compatibility that forms part of 

the explanatory memorandum to the bill. It identifies that the bill engages and 

promotes the right of freedom of expression under article 19 of the International 

Covenant on Civil and Political Rights (ICCPR) as: 

The Bill will prevent the Commonwealth from including clauses in 

agreements that prevent or restrict NFP entities from advocating on 

Commonwealth policy issues. 11 

1.44 It concludes that the bill does not limit any rights and is therefore compatible 

with human rights. 


1.45 Article 19(2) of the ICCPR provides: 

Everyone shall have the right to freedom of expression; this right shall 

include freedom to seek, receive and impart information and ideas of all 

kinds, regardless of frontiers, either orally, in writing or in print, in the 

form of art, or through any other media of his choice. 

1.46 The bill, in seeking to prevent Commonwealth contracts from restricting 

NFPs from 'commenting on, advocating support for or opposing a change to any 

matter established by law, policy or practice of the Commonwealth', appears to 

promote the right to freedom of expression. 

Right to take part in public life 

1.47 The bill also appears to promote the right to participation in public affairs as 

contained in article 25 of the ICCPR. This article provides that every citizen has the 

right and the opportunity 'to take part in the conduct of public affairs, directly or 

through freely chosen representatives'. As the UN Human Rights <strong>Committee</strong> has 

noted: 


Page 66 

In order to ensure the full enjoyment of rights protected by article 25, the 

free communication of information and ideas about public and political 

issues between citizens, candidates and elected representatives is 

essential. This implies a free press and other media able to comment on 

public issues without censorship or restraint and to inform public opinion. 

It requires the full enjoyment and respect for the rights guaranteed in 

articles 19 [free speech], 21 [peaceful assembly] and 22 [freedom of 

association] of the Covenant, including freedom to engage in political 

activity individually or through political parties and other organizations, 

freedom to debate public affairs, to hold peaceful demonstrations and 

meetings, to criticize and oppose, to publish political material, to campaign 

for election and to advertise political ideas. 12 

Right not to be subjected to arbitrary interference with privacy 

1.48 Clause 5(2) of the bill provides that a Commonwealth agreement can restrict 

a NFP entity from disclosing confidential or personal information. Confidential 

information means information that would found an action for breach of confidence, 

disclose trade secrets or be likely to prejudice national security, 13 while personal 

information has the same meaning as in the Privacy Act 1988. While this limits 

freedom of expression it appears to do in limited way and promotes the right to 

privacy as guaranteed by article 17 of the ICCPR. 



12 UN Human Rights <strong>Committee</strong>, General Comment No. 25: The right to participate in public 

affairs, voting rights and the right of equal access to public service, CCPR/C/21/Rev.1/Add.7., 

para 25. 

13 See Clause 3, definition of 'confidential information'.

Page 67 

Water Efficiency Labelling and Standards (Registration Fees) 

Bill 2013 

Water Efficiency Labelling and Standards Amendment 

(Registration Fees) Bill 2013 


Portfolio: Sustainability, Environment, Water, Population and Communities 

1.50 These bills seek to amend the Water Efficiency Labelling and Standards 

Act 2005 to enable the Minister to set fees for applying for registration under the 

Water Efficiency Labelling and Standards (WELS) scheme. The WELS scheme requires 

the registration and labelling of water using or water conserving products to show 

their water efficiency. Currently fees can only be imposed for services and not for 

applications for registration. The bills seek to implement the Standing Council on 

Environment and Water’s decision (in November 2011) that the scheme should 

recover 80 per cent of its costs from registrants. 

1.51 The Water Efficiency Labelling and Standards (Registration Fees) Bill 2013 

would enable the Minister to specify fees by legislative instrument – the actual fees 

are not set out on the face of the bill. The fees to be set are to be at a level that is 

designed to recover no more than the likely cost of administering the WELS scheme. 

The Water Efficiency Labelling and Standards Amendment (Registration Fees) 

Bill 2013 relate to the setting of fees and allow an application to be refused where a 

fee has not been paid or for the waiver or refund of fees. 


1.52 These bills are accompanied by self-contained statements of compatibility 

that state that the bills do 'not engage any of the applicable rights or freedoms' and 

are therefore compatible with human rights. 

1.53 The committee agrees that these bills do not appear to engage any human 

rights, but notes that the Water Efficiency Labelling and Standards Act 2005 which 

these bills seek to amend contains regulatory and enforcement powers (including 

civil penalties) that raise a number of concerns that the committee has previously 

commented on in relation to other legislation. 14 

1.54 The committee considers that these bills do not give rise to issues of 


14 See, for example, the PJCHR's First Report of 2013 pp 8-11; Second Report of 2013 pp 2-6.

Part 2 

Select legislative instruments registered 

with FRLI 17 – 20 December 2012

Consideration of legislative instruments 

Page 69 

2.1 In this report the committee has considered four legislative instruments that 

were deferred for further consideration. 

2.2 The committee is seeking further information from the relevant Minister in 

relation to each of the instruments before forming a view about their compatibility 

with human rights. 

2.3 The instruments considered in this report are: 

• Radiocommunications (Field Trial by Corrective Services NSW of PMTS 

Jamming Devices at Lithgow Correctional Centre) Exemption 

Determination 2012 

• Social Security (Actuarial Certificate - Life Expectancy Income Stream 

Guidelines) Determination 2012 

• Social Security (Actuarial Certificate - Lifetime Income Stream 

Guidelines) Determination 2012 

• Work Health and Safety Act 2011 (application to Defence activities and 

Defence members) Declaration 2012 



Page 70 

Radiocommunications (Field Trial by Corrective Services 

NSW of PMTS Jamming Devices at Lithgow Correctional 

Centre) Exemption Determination 2012 

FRLI ID: F2012L02561 



2.5 The committee seeks further information in relation to: 

Overview 

• any testing or other research that may have been conducted to 

determine the level of risk that mobile telephone technology outside 

the Lithgow Correctional Centre may be affected by the field trial; and 

• the current use of mobile phone technology by staff at the Lithgow 

Correctional Centre. 

2.6 The purpose of this instrument is to facilitate the trial of public mobile 

telecommunications service (PMTS) jamming devices by Corrective Services NSW at 

the Lithgow Correctional Centre in New South Wales. PMTS jamming devices are 

designed to interfere with, or disrupt or disturb radiocommunications frequencies 

that are used to support the PMTS. The explanatory statement states that PMTS 

jamming devices have 'considerable radiocommunications interference potential'. 

2.7 Members of the corrective services community have requested that the 

ACMA consider permitting the use of PMTS jamming devices in prisons. The 

explanatory statement states that: 

The use of mobile phones by prison inmates is considered to be a serious 

problem by Corrective Services NSW. While it is an offence in NSW for an 

inmate to use or possess a mobile phone without reasonable excuse, 

detection of possession and use of mobile phones can be difficult. The use 

of mobile phones allows prisoners to continue to be involved in criminal 

activity outside the confines of the prison. This is a threat to the proper 

administration of correctional facilities and is contrary to the objectives of 

imprisonment. 

2.8 It is noted in the explanatory statement that licenced telecommunications 

carriers (Telstra, Optus and Vodafone Hutchinson Australia) have an interest in 

minimising potential interference to radiocommunications outside the Lithgow 

Correctional Centre. As a result, the carriers and Corrective Services NSW have 

developed a 'Carrier Liaison Agreement'. This agreement contains operational 

arrangements and protocols agreed between Corrective Services NSW and the 

carriers about use of the PMTS jamming devices by Corrective Services NSW 

including: 



Page 71 

• consultation about technical specifications of the PMTS jamming 

devices; 

• monitoring of the interference of the PMTS jamming devices on mobile 

networks; 

• management of consumer complaints; 

• management by Corrective Services NSW of any emergencies where a 

PMTS jamming device is operational at the Lithgow Correctional Centre; 

and 

• distribution by Corrective Services NSW of information to the public 

about the Lithgow Field Trial. 

2.9 Subsection 6(3) of the instrument provides that ACMA may notify Corrective 

Services NSW that field trial participants are excluded from relying on the 

Determination. Examples of the kinds of situations in which the ACMA may issue 

such a notification include: 

• a failure to implement or observe arrangements between Corrective 

Services NSW and industry about the conduct of the trial; 

• threats to public safety resulting from the operation of the PMTS 

jamming devices; 

• monitoring and reporting arrangements regarding the impact of the 

field trial on the operation of mobile telecommunications networks are 

deficient; 

• harmful emissions occur outside the field trial zone; or 

• public complaints are received about the operation of the field trial that 

require further investigation before the trial can continue. 

2.10 The field trial at Lithgow Correctional Centre is to be conducted over a 12 

month period and will commence on 1 July 2013 and cease on 30 June 2014. 


2.11 The statement of compatibility states that the instrument does not engage 

any of the applicable rights or freedoms. 

2.12 However, given that mobile telephone technology is such an important 

medium of communication, any possible interference with a person's ability to utilise 

mobile telephone technology has the potential to impact on the right to freedom of 

expression contained in article 19 of the International Covenant on Civil and Political 

Rights (ICCPR). 

2.13 The explanatory memorandum explains that it is already an offence for 

prison inmates to use or possess a mobile phone without reasonable excuse, but that 

detection of possession and use of a mobile phone can be difficult. While it may be 



Page 72 

that limiting prisoners' ability to use mobile telephone technology could be seen to 

be a reasonable, necessary and proportionate limitation on the right to freedom of 

expression, it is not clear from the statement of compatibility what impact the field 

trial may have on the use of mobile phones by staff at the Lithgow Correctional 

Centre or the general public who may live nearby. In this context, the committee 

notes that provision has been made for the 'management of consumer complaints'. 

2.14 The committee seeks information from the Minister for Broadband, 

Communications and the Digital Economy in relation to: 

• whether any testing or other research has been conducted to 

determine the level of risk that mobile telephone technology outside 

the Lithgow Correctional Centre may be affected by the field trial (and 

the results of any testing); and 

• whether mobile phone technology is currently used by staff at the 

Lithgow Correctional Centre (in a professional or personal capacity). 



Social Security (Actuarial Certificate - Life Expectancy 

Income Stream Guidelines) Determination 2012 

FRLI ID: F2012L02567 

Portfolio: Families, Community Services and Indigenous Affairs 

Social Security (Actuarial Certificate - Lifetime Income 

Stream Guidelines) Determination 2012 

FRLI ID: F2012L02565 

Portfolio: Families, Community Services and Indigenous Affairs 


Page 73 

2.15 The committee seeks clarification as to rationale for changing the guidelines 

and the possible impact of the changes on the quantum of social security benefits 

payable to persons. 

Overview 

2.16 These legislative instruments provide guidelines to be complied with when 

determining whether an income stream is an asset-test exempt income stream that 

is generally exempt from the asset testing requirements of the Social Security 

Act 1991. Where these guidelines are not satisfied, the income stream would lose its 

asset-test exemption. As a result, the instruments may ultimately affect the rate of 

social security payable to a person. 


2.17 The statements of compatibility for both instruments state that the 

instruments do not engage any of the applicable rights or freedoms. 

2.18 However, as the instruments may affect the rate of social security payable to 

a person, the instruments may engage the right to social security contained in 


(ICESCR). 

2.19 The committee intends to write to the Minister for Families, Community 

Services and Indigenous Affairs to seek further clarification in relation to: 

• the rationale for changing the guidelines; and 

• the potential impact of the changes to the guidelines on the quantum 

of social security benefits payable to persons, including the number of 

social security recipients who may receive reduced benefits as a result 

of the changes. 



Page 74 

Work Health and Safety Act 2011 (application to Defence 

activities and Defence members) Declaration 2012 

FRLI ID: F2012L02503 

Portfolio: Defence 


2.20 The committee considers that this instrument limits the right to just and 

favourable conditions of work, in particular the right to safe and healthy working 

conditions. The committee seeks further information as to why exempting certain 

requirements in their entirety under the Work Health and Safety Act 2011 is a 

reasonable and proportionate limitation on the right to a safe and healthy working 

conditions. 

Overview 

2.21 This instrument declares that specified provisions of the Work Health and 

Safety Act 2011 (the Act) do not apply, or apply subject to modifications and 

adaptations, in relation to Defence activities and Australian Defence Force members. 

2.22 In particular, the instrument declares that the following sections of the Act 

do not apply to Australian Defence Force warlike and non-warlike operational 

deployments: 

• Section 38 – Incident notification; 

• Section 39 – Site preservation. 

2.23 Further, the instrument declares that the following sections of the Act do not 

apply to all Australian Defence Force (ADF) members: 

• Sections 47-49 – Consultation with workers; 

• Sections 50-79 – Health and safety representatives and work groups; 

• Sections 84-89 – Right to cease or direct cessation of unsafe work. 


2.24 The statement of compatibility notes that the instrument engages the right 

to just and favourable conditions of work, including the right to safe and healthy 

working conditions, contained in article 7 of the International Covenant on Economic, 

Social and Cultural Rights (ICESCR). It states that: 

These rights are limited because of military necessity, both in terms of the 

discipline and nature of military service and for operational reasons such 

as where radio silence is required or where Defence is undertaking a 

hazardous activity in a foreign State and does not have 'management or 

control' of a site. 



Page 75 

2.25 Further, it is suggested that the limitations on these rights are reasonable, 

necessary and proportionate as they are 'necessary for efficient operation and 

functionality of the military and consequently in the public interest, that is to meet 

the Australian Government's defence policy.' 

2.26 The statement of compatibility explains that internal procedures are also in 

place to ensure the workplace health and safety of defence force members: 

The Defence Safety Management System is designed to give all 

Department of Defence workers the highest level of protection that is 

reasonably practicable against harm to their health, safety and welfare 

from hazards and risks arising at work. With respect to Australian Defence 

Force warlike and non-warlike operational deployments, Defence 

continues to notify, report and where appropriate, investigate notifiable 

incidents internally and records of these reports and investigations will be 

made available to the Regulator on request. 

2.27 The committee considers that this instrument appears to limit the right to 

just and favourable conditions of work, in particular the right to safe and healthy 

working conditions. Any such limitations must be shown to be necessary, reasonable 

and proportionate. 

2.28 It is unclear from the statement of compatibility why certain provisions of 

the Work Health and Safety Act 2011 are to be removed from all ADF members, 

regardless of whether they are on an international posting or are working in 

Australia. While the right of everyone to join trade unions in article 8 of the ICESCR 

does not prevent the imposition of lawful restrictions on the exercise of these rights 

by members of the armed forces, article 7, which includes the right to safe and 

healthy working conditions, has no such limitation. 

2.29 It is also unclear why the instrument exempts in its entirety the sections of 

the Act in relation to incident notification and site preservation for ADF warlike and 

non-warlike operational deployments. The committee understands that immediate 

notification of an incident may not be possible in overseas deployments, but it is 

unclear why the instrument could not subject the provisions to any necessary 

modifications, for example to give greater time for notifications (as provided for by 

section 12D(2) of the Work Health and Safety Act 2011. 

2.30 The committee intends to write to the Minister for Defence to seek further 

information as to why exempting certain requirements under the Work Health and 

Safety Act 2011 in their entirety is a reasonable and proportionate limitation on 

the right to safe and healthy working conditions under article 7 of the ICESCR.

Parliamentary Joint Committee on Human Rights

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