Explanatory Memorandum
(Circulated by authority of the Minister for Finance, Senator the Hon Mathias Cormann)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Statute Update (Smaller Government) Bill 2017
The Statute Update (Smaller Government) 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.
Overview of the Bill
The Statute Update (Smaller Government) Bill 2017 would repeal three Acts and amend ten Acts across the Commonwealth to cease or abolish the:
- •
- Central Trades Committee;
- •
- Oil Stewardship Advisory Council;
- •
- Product Stewardship Advisory Group;
- •
- Australian Sports Anti-Doping Authority Advisory Group;
- •
- Plant Breeder's Rights Advisory Committee;
- •
- Development Allowance Authority; and
- •
- Corporations and Markets Advisory Committee.
SCHEDULE 1
Schedule 1 to this Bill will repeal the Tradespersons' Rights Regulation Act 1946 (TRR Act). The TRR Act was enacted to establish a domestic skills assessment program to recognise the trade skills gained by Australians during World War II. The TRR Act and its associated regulations underpinned the Australian Recognised Trade Certificate Program (ARTC Program). The TRR Act was amended in 1952 to provide formal recognition of the trade skills of migrants in Australia who had undertaken their trade training overseas. The ARTC Program was a domestic skills assessment and recognition program that operated from 1946 to 2014 and was administered by Trades Recognition Australia (TRA).
The purpose of the ARTC Program was to assist individuals to gain work by providing them with formal recognition, in the form of an Australian Recognised Trade Certificate (ARTC) of certain trade skills they had acquired overseas. The TRR Act provided for the establishment of central and local trade committees, consisting of industry representatives, to consider applications for ARTCs.
The TRR Act became redundant on 1 October 2014 when the ARTC Program was replaced by the Trades Recognition Service (TRS). The ARTC Program was replaced with the TRS because the ARTC Program became outdated over time, and no longer aligned with the national vocational education and training (VET) system. As a result, industry and employers increasingly moved away from recognising ARTCs as a qualification.
As the ARTC Program has closed and been replaced by the TRS, the TRR Act is no longer used and is a redundant Act. The purpose of the Bill is to repeal the TRR Act as it is no longer required.
Human rights implications
The repeal of the Tradespersons' Rights Regulation Act 1946 engages the following rights:
- •
- Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - Right to Work.
The right to work includes the right for everyone to have the opportunity to gain a living by work which they freely choose or accept.
The repeal of the TRR Act does not limit the right to work, as the ARTC Program has been replaced by the TRS, which promotes the right to work.
An ARTC was a recognised certificate that assisted individuals in gaining work. However, as the TRR Act and ARTC Program increasingly became outdated because of changes in the national VET system, this resulted in the ARTC becoming a certificate that was, over time, increasingly considered to be outdated and recognised by fewer industries and employers. This had the impact of limiting the ability of individuals with ARTCs to gain access to work and further training.
The TRS (which replaced the ARTC Program) is designed to provide individuals who possess certain trade skills gained outside a formal apprenticeship or traineeship pathway (including overseas) with a pathway to obtain a skills assessment and recognised qualification for those skills. The TRS ensures the right to work by making successful applicants under the TRS more employable in work they freely choose or accept through the provision of a recognised qualification that is aligned to the national VET system. An Industry Advisory Group (IAG) has been established to provide ongoing industry advice and expertise on skills recognition policy, industry issues and quality assurance to TRA to enhance quality outcomes across TRA's skills assessment programs (including the TRS).
The repeal of the TRR Act through this Bill is compatible with human rights because it does not limit an individual's right to work.
Conclusion
Schedule 1 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.
SCHEDULE 2
The proposed repeal of the Oil Stewardship Advisory Council does not engage any applicable human rights.
Conclusion
Schedule 2 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.
SCHEDULE 3
The proposed repeal of the Product Stewardship Advisory Group does not engage any applicable human rights.
Conclusion
Schedule 3 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.
SCHEDULE 4
The proposed repeal of the Advisory Group of the Australian Sports Anti-Doping Authority does not engage any applicable human rights.
Conclusion
Schedule 4 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.
SCHEDULE 5
Schedule 5 removes the Plant Breeder's Rights Advisory Committee from the Plant Breeder's Rights Act 1994. A more flexible, non-statutory mechanism will provide specialised advice on Plant Breeder's Rights matters.
Schedule 5 does not engage any of the applicable rights or freedoms.
Conclusion
Schedule 5 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.
SCHEDULE 6
Schedule 6 to this Bill repeals the now inoperative tax exempt infrastructure borrowing concession, and makes related consequential amendments.
Schedule 6 to this Bill does not engage any of the applicable rights or freedoms. None of the provisions being repealed have any ongoing operative effect.
Conclusion
Schedule 6 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.
SCHEDULE 7
Corporations and Markets Advisory Committee Abolition
Overview
Schedule 7 to this Bill repeals Part 9 of the Australian Securities and Investments Commission Act 2001 (ASIC Act), which provides for the establishment, functions and operation of the Corporations and Markets Advisory Committee (CAMAC). In doing so, the agency ceases to exist.
This decision was made in the 2014-15 Budget in the context of the broader Smaller and More Rational Government reforms to reduce the number of Australian Government bodies and streamline the shape of government.
Schedule 7 to this Bill also makes a number of consequential amendments to the ASIC Act as a result of the repeal of Part 9 and provides for the transitional and savings arrangements that are necessary to facilitate the cessation of CAMAC.
Human rights implications
This Bill engages the following human rights:
- •
- the right to a fair hearing and fair trial in Article 14 of the International Covenant on Civil and Political Rights (ICCPR);
- •
- the right to an effective remedy in Article 2 of the ICCPR; and
- •
- the right to privacy in Article 17 of the ICCPR.
Right to a fair hearing and fair trial and right to an effective remedy
Item 18 in Part 2 of Schedule 7 to this Bill (a transitional provision) provides for the Commonwealth to take the place of CAMAC in relation to the operation of any law of the Commonwealth and for the Department of the Treasury (the Treasury) to take the place of CAMAC for the purposes of the Ombudsman Act 1976.
By attributing acts of CAMAC to the Commonwealth or to Treasury, this Bill engages the right to a fair hearing and fair trial in Article 14 of the ICCPR and the right to an effective remedy in Article 2 of the ICCPR. It supports these rights by preserving the capacity for action to be taken in relation to acts of CAMAC, notwithstanding its abolition.
Item 18 in Part 2 of Schedule 7 also provides for the relevant Treasury Portfolio Minister (or delegate in accordance with item 24 in Part 2 of Schedule 7) to make rules which:
- •
- carve out things in relation to which the Commonwealth will not take the place of CAMAC; and/or
- •
- prescribe things in relation to which a particular person - rather than the Commonwealth - will take the place of CAMAC.
Allowing for the making of such rules which carve out things in relation to which the Commonwealth will not take the place of CAMAC could be argued to inhibit future proceedings to be launched against CAMAC, and consequently may limit the right to a fair hearing and fair trial in Article 14 of the ICCPR and the right to an effective remedy in Article 2 of the ICCPR.
It is not expected that any rules will be required under item 18. The item is considered to be reasonable and necessary to mitigate any unintended consequences which might arise from the substitution of the Commonwealth or the Treasury for CAMAC in particular circumstances.
Right to privacy
Item 21 in Part 2 of Schedule 7 (a transitional provision) provides for the continuation of conditions placed on CAMAC in relation to information disclosed under subsection 127(4) of the ASIC Act.
By regulating disclosed information, this Bill engages the right to privacy in Article 17 of the ICCPR. It supports the right to privacy by preserving protections which are in place under the existing law.
It appears that no conditions have been placed on CAMAC in relation to information disclosed by ASIC under subsection 127(4). Item 21 is included as safeguard to ensure that, if it arises that there were such conditions imposed on CAMAC, those conditions continue to apply to the recipients of the information.
Conclusion
This Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Schedule 7 to this 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.