Explanatory Memorandum
(Circulated by the authority of the Minister for Communications, Senator the Honourable Mitch Fifield)STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Enhancing Online Safety for Children Amendment Bill 2017
The Enhancing Online Safety for Children Amendment Bill 2017 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Bill engages the right to privacy, and any limitation on this right, as discussed below, is considered reasonable, necessary and proportionate to the goal of enhancing online safety for all Australians..
Overview of Bill
The Bill will amend the title of the Act and the title of the statutory office of Children's e-Safety Commissioner to reflect the broader role for online safety that the Commissioner has that goes beyond online safety for Australian children.
The Bill will also make consequential amendments to other Acts to reflect the new short title of the Act and new title of the statutory office.
The Commissioner's obligations in respect of the Convention on the Rights of the Child remain unaffected and will continue to be confined to the performance of the Commissioner's functions under the Act in respect of Australian children.
Human rights implications
The principal human right that the Bill engages is the right to privacy, which is recognised by the Convention on the Rights of the Child (the CROC), the International Covenant on Civil and Political Rights (the ICCPR) and the Convention on the Rights of Persons with Disabilities (the CRPD).
This right, and how it is impacted by the measures in the Bill which expand certain functions and powers of the Commissioner relating to the online safety of Australians, is discussed in more detail below.
The Bill makes several consequential amendments, and transitional and savings provisions which are considered technical and do not engage any human rights.
Privacy
Paragraph 1 of Article 17 of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence. Paragraph 2 of Article 17 of the ICCPR recognises the right of everyone to the protection of the law against such interference.
Paragraph 1 of Article 16 of the CROC recognises, among other things, the right of a child not to be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. Paragraph 2 recognises that children have the right to the protection of the law against such interference or attacks. Similar rights are recognised in Article 22 of the CRPD.
The Bill engages this right to privacy. Section 80 of the Act authorises the Commissioner to disclose information to any of a variety of authorities listed in that section, if the Commissioner is satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers. While the Bill does not amend or broaden the disclosure power under section 80, increasing the general powers and functions of the Commissioner to cover online safety for all Australians (by items 18 and 19 and of Schedule 1 to the Bill) and the amendment made by item 27, means that a broader class of information (namely, information that relates to any Australian persons concerning online safety) could potentially be disclosed under subsection 80(1) to listed authorities (which includes the Australian Federal Police, the Director of Public Prosecutions, the Australian Communications and Media Authority (the ACMA), and the National Children's Commissioner).
Each of the instances in which disclosure of information is authorised would, because of the nature of section 80, be reasonable in the circumstances. Accordingly, the Bill is consistent with the right against arbitrary interferences with privacy.
The Commissioner will continue to be an 'agency' for the purposes of the Privacy Act 1988 (the Privacy Act), and therefore will be bound by the Privacy Act. Similarly, any body corporate to which the Commissioner delegated functions or powers under existing section 64 of the Act is bound by the Privacy Act. It is expected that the Commissioner will, as a matter of best practice, undertake privacy impact assessments before making any disclosures under subsection 80(1) and only disclose the type and level of information that it determines is absolutely necessary to enable or assist the relevant authority perform or exercise its powers or functions. For example, for a proposed disclosure under the authorisation to a listed authority other than the Australian Federal Police or the Director of Public Prosecutions, it is expected that any personal information disclosed by the Commissioner would be de-identified rather than identified personal information to minimise any adverse privacy impacts. Conversely, if the disclosure were to assist an enforcement body in the investigation and/or prosecution of a criminal nature, it may be reasonable for personal information to be disclosed by the Commissioner.
Conclusion
The Bill is compatible with the applicable human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent to which they may engage the right to privacy, any limitation is reasonable, necessary and proportionate to the goal of enhancing online safety for all Australians.The Bill does not engage any of the other applicable rights or freedoms.