House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Territories Legislation Amendment Bill 2020

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.

Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020

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.

Overview of the Bills

The Territories Legislation Amendment Bill 2020 (the Bill) and the Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020 (Estate Charges Bill) (the Bills) will:

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Amend the Norfolk Island Act 1979 (NI Act), Christmas Island Act 1958 (CI Act) and Cocos (Keeling) Islands Act 1955 (CKI Act) to ensure the effective operation of the laws of other states and territories which have been applied in these territories.

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Amend the NI Act to allow the Australian Government to enter into arrangements with any state or territory government to support state-type service delivery in Norfolk Island and provide for the possible future conferral upon the courts of a state or territory jurisdiction (including appellate jurisdiction) in relation to Norfolk Island.

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Amend the Corporations Act 2001 (Corporations Act), Australian Securities and Investments Commission Act 2001(ASIC Act) and associated Treasury Acts to fully extend their application to the external territories and ensure all Australian companies operate under the same legislative framework.

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Amend the Bankruptcy Act 1966 (Bankruptcy Act) to allow the Australian Financial Security Authority (AFSA) to provide bankruptcy and personal property security services to Norfolk Island. The Estate Charges Bill is consequential to this measure and extends the Bankruptcy (Estate Charges) Act 1997 to Norfolk Island.

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Amend the Freedom of Information Act 1982 (FOI Act) to clarify its application to bodies established under a law in force in Norfolk Island.

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Amend the Privacy Act 1988 (Privacy Act) to clarify its application to statutory bodies in the external territories and clarify the application of the Australian Privacy Principles (APPs) to state and territory laws which have been applied in the external territories and the Jervis Bay Territory.

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Amend the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to extend its coverage to decisions made by Commonwealth officials under applied laws in the external territories and the Jervis Bay Territory and extend the right to judicial review to decisions made under laws made by the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances.

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Amend the Criminal Code Act 1995 (Criminal Code) to update the definition of 'Commonwealth public official' to include people exercising powers or functions under a law in force in Norfolk Island.

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Amend the Broadcasting Services Act 1992 (Broadcasting Services Act) to allow the Australian Communications and Media Authority (ACMA) to issue licences and undertake future broadcasting planning in Norfolk Island.

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Amend the Copyright Act 1968 (Copyright Act) to ensure Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

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Extend the application of the Education Services for Overseas Students Act 2000 (ESOS Act) to Norfolk Island to allow for the potential regulation of services to overseas students attending Norfolk Island Central School.

The Australian territories of Christmas Island, the Cocos (Keeling) Islands, Norfolk Island, and the Jervis Bay Territory, are governed under Commonwealth legislation which allows for the laws of another jurisdiction to be applied in those territories to enable the regulation and delivery of services usually provided by state or territory governments. The Bill amends a range of Commonwealth legislation to more closely align the legislative frameworks in these territories with the rest of Australia.

In March 2015, the Australian Government announced comprehensive changes in Norfolk Island to address issues of sustainability which arose from the model of governance requiring the former Administration of Norfolk Island to deliver local, state and Commonwealth government services.

In 2016, the Parliament passed the Territories Legislation Amendment Act 2016 (Territories Legislation Amendment Act) which extended all Commonwealth legislation to Norfolk Island unless expressly provided otherwise. The extension of some legislation was deferred to allow extra time for the community to prepare for the transition to the new arrangements. The Bill extends further Commonwealth legislation relating to corporations, bankruptcy, broadcasting and education services for overseas students to Norfolk Island to bring regulation in these areas into line with the rest of Australia.

Schedule 1 - Amendments of Territory Acts

Applied laws

Amendments to the NI Act provide a mechanism under which the laws of Australian states or territories may be applied as Commonwealth law in Norfolk Island. These arrangements are intended to operate in the same way as the existing arrangements that allow for the application of NSW laws and provide a broader and more flexible legal mechanism with respect to the future provision of state-type services in Norfolk Island. The amendments allow for the laws of a state, prescribed by regulations as an 'applied law jurisdiction', to be applied in Norfolk Island.

The Commonwealth minister responsible for Norfolk Island will also be able to enter into arrangements with the relevant state government for assistance in the administration of these applied laws and other laws in force in Norfolk Island, including the performance of functions and provision of services by state officials or authorities (other than courts) on behalf of the Commonwealth.

In the absence of any such arrangements, the application of the laws of a state in Norfolk Island does not in any way place an obligation on the relevant government's officials to deliver services or administer legislation in respect of Norfolk Island. Non-judicial powers and duties will be vested in the Commonwealth minister, who will have capacity to delegate the powers, or direct that they be delegated to some other person or authority.

Alternatively, if a territory (other than Norfolk Island) is prescribed by regulations as an 'applied law jurisdiction', the laws of that territory will be applied in Norfolk Island. These arrangements would be similar to those operating in the Jervis Bay Territory with respect to the application of Australian Capital Territory laws under the Jervis Bay Territory Acceptance Act 1915.

Reflecting the different constitutional status of the territories compared with the states, officials and authorities of a territory prescribed as an applied law jurisdiction would, in the absence of any arrangement between the Commonwealth minister and the territory government, be able to exercise any powers and functions under applied territory laws in relation to Norfolk Island as if it formed part of their own territory. However, these provisions do not prevent the Commonwealth from entering into arrangements with the territory government dealing with the administration of applied territory laws.

The Commonwealth minister will also have capacity to direct that powers or functions under applied territory laws be vested in a person or authority (including the Commonwealth minister) in addition to or instead of the relevant territory official or authority.

Delegation

Amendments to the NI Act, CI Act and the CKI Act address the risk of delegation instruments becoming outdated when applied laws in force in the territories are amended or new laws are made by the relevant state or territory government. This will address any concerns that the delegation instruments cannot encompass powers that do not exist at the time they are made. Other technical changes are intended to improve the operation of the delegation arrangements more generally with respect to applied laws, including enhancing consistency of language between the applied laws regimes, as well as permitting ordinances to incorporate applied laws as in force from time to time.

The amendments also address the need for the Commonwealth minister to sign delegation instruments vesting the powers and functions of the police and local government bodies under applied laws to the police and the local government bodies for each territory. If applied laws are amended by state or territory governments to confer new powers and functions on the police and local government bodies, the amendments ensure the deemed vesting of these new powers and functions by the minister. Provision is also made for other powers and functions under applied laws to be prescribed by an ordinance for the purposes of these deemed vesting provisions. These arrangements will enhance the effectiveness of these delegation arrangements with respect to the functions of the police, local government and others who exercise powers under applied laws in the external territories.

Jurisdiction of Norfolk Island courts

Amendments in relation to the jurisdiction of Norfolk Island courts complement the amendments to the NI Act which allow state or territory laws to be applied in Norfolk Island.

These amendments permit the courts of a prescribed state or territory to have jurisdiction (including appellate jurisdiction) in relation to Norfolk Island as if it were part of that state or territory. This will allow for the courts of the relevant state or territory providing services to Norfolk Island to hear matters relevant to the services being provided by state or territory government officials under the applied laws of that same jurisdiction. This would be similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands where the courts of Western Australia have jurisdiction with respect to these external territories as if these territories were part of Western Australia.

If jurisdiction in relation to Norfolk Island is conferred on the courts of a prescribed state or territory, the amendments provide for that court to sit in either in Norfolk Island or in the prescribed state or territory. However, similar to the arrangements which apply in Christmas Island and the Cocos (Keeling) Islands, a court of a prescribed state or territory may only sit in the prescribed state or territory when exercising its criminal jurisdiction if to do so would not be contrary to the interests of justice.

Consequential amendments provide for the Supreme Court of Norfolk Island to cease operation after its jurisdiction is conferred on a court of a prescribed state or territory. The future operation of other Norfolk Island courts and tribunals will be dealt with by ordinances made under the NI Act.

It is likely to be a number of years before these provisions are utilised.

Schedule 2 - Amendments of Treasury Acts

The Bill extends the application of the Corporations Act, the ASIC Act, the National Consumer Credit Protection Act 2009 (National Consumer Credit Protection Act), the Competition and Consumer Act 2010 (Competition and Consumer Act) and the Cross-Border Insolvency Act 2008 (Cross Border Insolvency Act) to Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands.

The Bill amends application provisions and definitions in these Acts to ensure all Australian companies operate under the same legislative framework.

Transitional provisions allow for the registration of companies registered under the Companies Act 1985 (NI) (Norfolk Island Companies Act) to be transferred to registration under the Corporations Act. This process will be undertaken by ASIC and will not require Norfolk Island companies to make an application in order to transition. The Bill also provides a rule-making power for ASIC to make rules of a transitional nature relating to the amendments made by the Bill. ASIC will be able to make such rules until 12 months after the commencement of the substantive amendments to the Acts administered by ASIC.

After this time, the transitional rule-making power, and any rules made under those powers, will be automatically repealed. However, any rules relating to the transition of a particular Norfolk Island company's registration may continue to operate for a further period of approximately 12 months, to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of the transition of that company's registration.

The Bill also amends the ASIC Supervisory Cost Recovery Levy Act 2017 (ASIC Supervisory Cost Recovery Levy Act) and the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 (ASIC Supervisory Cost Recovery Levy (Collection) Act) to remove out-of-date references to the 'Crown in right of Norfolk Island', as this body politic no longer exists.

The substantive amendments to the Corporations Act, ASIC Act and other Acts administered by ASIC commence on the later of:

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the first Monday to occur after the end of the period of 6 months after the day the Bill receives assent; and

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2 August 2021.

The deferred commencement is necessary to enable sufficient time for ASIC to transfer the registration of companies from being under the Norfolk Island Companies Act to being under the Corporations Act. The remaining amendments commence on the day after the Bill receives assent.

Schedule 3 - Amendments of Attorney-General's Department Acts

Bankruptcy Act 1966

The Bill amends the Bankruptcy Act to extend the Commonwealth bankruptcy system to Norfolk Island. Norfolk Island currently operates its own bankruptcy system and bankruptcies are administered under the Bankruptcy Act 2006 (NI) (Norfolk Island Bankruptcy Act). Extending the Bankruptcy Act to Norfolk Island ensures bankruptcies in Norfolk Island are administered in a way that is consistent with all other bankruptcies in Australia. The personal insolvency trustee and regulation services of the AFSA also extends to bankruptcies on Norfolk Island.

Division 1 of Part 1 of Schedule 3 to the Bill makes general amendments to the Bankruptcy Act to ensure that the operation of the Bankruptcy Act is extended to Norfolk Island and that relevant definitions capture Norfolk Island.

Division 2 of this Part includes transitional provisions to ensure the smooth transition of any person who was previously made bankrupt under the Norfolk Island Bankruptcy Act and who remains bankrupt at the time of commencement to the Commonwealth bankruptcy system.

Division 2 also ensures that the AFSA has access to information and records necessary to effectively administer any Norfolk Island bankruptcy matters transitioned to the Commonwealth bankruptcy system and ensure compliance with requirements to enter information on the National Personal Insolvency Index under the Bankruptcy Act.

Freedom of Information Act 1982

Part 2 of Schedule 3 to the Bill amends the FOI Act to clarify its application to bodies established by or under a law in force in Norfolk Island, in particular, the laws of a state or territory applied in the territory under the NI Act.

These amendments clarify the application of the FOI Act to bodies such as the Norfolk Island Regional Council (NIRC) which is established under an applied New South Wales (NSW) law, specifically, the Local Government Act 1993 (NSW)(NI). Redundant provisions relating to the former governance arrangements in Norfolk Island have also been removed.

Privacy Act 1988

Part 3 of Schedule 3 amends the definition of 'Australian law' in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. Redundant provisions relating to the former governance arrangements in Norfolk Island are removed and other amendments clarify the application of the Privacy Act to public offices and bodies established under laws in force in the external territories.

Administrative Decisions (Judicial Review) Act 1977

The Bill amends the ADJR Act to extend its coverage to any administrative decision made by a Commonwealth authority or an officer of the Commonwealth under an applied state or territory law operating in the external territories and the Jervis Bay Territory. It also extends the right to judicial review of decisions made under laws of the former Norfolk Island Legislative Assembly and continued pre-self-government ordinances. This allows people living in these territories to seek judicial review under the ADJR Act of decisions made in relation to state-type services, such as health, education and planning.

Criminal Code Act 1995

The Bill amends the Criminal Code to update the definition of 'Commonwealth public official' to include people who exercise powers, or perform functions conferred on them under a law in force in Norfolk Island. This ensures the effective operation of offences relating to the proper administration of government in Chapter 7 of the Criminal Code.

Schedule 4 - Amendments of other Acts

Broadcasting Services Act 1992

Amendments to the Broadcasting Services Act in Part 1 of Schedule 4 facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act 2001 (Norfolk Island Broadcasting Act) and allow future broadcasting planning and licensing in respect of Norfolk Island to be undertaken in accordance with the Broadcasting Services Act.

Copyright Act 1968

The Bill makes minor amendments to the Copyright Act so that Norfolk Island is treated as a territory instead of a state for the purposes of the Act.

Education Services for Overseas Students Act 2000

The Bill extends the application of the ESOS Act to Norfolk Island. The amendments ensure protections in the ESOS Act relating to education quality, financial investment and welfare are available to overseas students on Norfolk Island who hold an Australian student visa.

The amendments also mean that providers delivering education to overseas students on Norfolk Island are required to be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).

Bankruptcy (Estate Charges) Amendment (Norfolk Island) Bill 2020

The purpose of the Estate Charges Bill is to extend the application of the Bankruptcy (Estate Charges) Act 1997 (Estate Charges Act) to Norfolk Island.

The Estate Charges Act imposes charges that are payable by trustees and debt agreement administrators to the Commonwealth in respect of personal insolvency administrations under the Bankruptcy Act 1966 (Commonwealth Bankruptcy Act). In particular, the Estate Charges Act imposes a realisations charge (a levy on all realisations made in respect of administrations under the Commonwealth Bankruptcy Act) and an interest charge (a levy on interest earned on money held in personal insolvency accounts). The realisations charge and interest charge recover the cost to the Commonwealth of regulating the personal insolvency system. Subject to the Commonwealth Bankruptcy Act being extended to Norfolk Island, the Bill will ensure that any insolvencies on Norfolk Island are treated consistently and attract the same estate charges as all other insolvencies administered under the Commonwealth Bankruptcy Act.

Human rights implications

The following human rights are engaged by the Bills:

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the right to a fair trial and fair hearing rights

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the right to liberty and security of person

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the right to privacy

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the right to freedom of expression and to take part in cultural life

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the right to education.

The right to a fair trial and fair hearing rights

Under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), a person is 'entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'. The amendments in the Bill advance this right in a number of respects.

Amendments to the NI Act allow the Commonwealth to enter into arrangements with state or territory governments to provide state-type services in Norfolk Island and provide for the possible future conferral of territory jurisdiction upon state or territory courts and tribunals. Where the laws of a state or territory have been applied in Norfolk Island to support state-type service delivery, these amendments ensure that matters arising under these laws can be heard by the relevant court with the appropriate legislative knowledge and experience in that jurisdiction.

Amendments to the NI Act engage the right to a fair trial to the extent that if the jurisdiction of Norfolk Island courts is conferred on a prescribed state or territory court, the amendments provide for the court to sit in either in Norfolk Island or in the prescribed state or territory when exercising its civil jurisdiction and, when exercising its criminal jurisdiction, only if it would not be contrary to the interests of justice. This is modelled on amendments to the NI Act in 2018 authorising the Supreme Court of Norfolk Island to sit outside the Norfolk Island in its criminal jurisdiction when not contrary to the interests of justice.

This allows for the venue of criminal and civil proceedings to be relocated from the place in which the alleged or impugned conduct was engaged. The relocation of proceedings may impose hardship on the accused person/defendant by reason of reduced access to witnesses and other evidence on which they may seek to rely in their defence of the proceedings. In this regard, Article 14(3)(e) of the ICCPR recognises that the accused person is entitled to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. Existing case law indicates that these factors will be taken into account by the relevant state or territory court in determining whether the relocation of the proceedings from Norfolk Island would be contrary to the interests of justice.

By authorising proceedings to be relocated and the empanelment of a jury in the alternative venue, the Bill also promotes the right to a fair trial in cases where there are concerns about empanelling an impartial local jury.

Amendments to the ADJR Act also engage this right. Consistent with Article 14(1) amendments to the ADJR Act ensure that decisions made under laws continued in force under sections 16 or 16A of the NI Act can be subsect to judicial review under this Act. The amendments make the same provisions for decisions made under the state or territory laws applied in the external territories and the Jervis Bay Territory. The effect is that decisions of an administrative character made under these laws may, consistent with the operation of the ADJR Act, be subject to judicial review.

The right to liberty and security of person

Article 9(1) of the ICCPR recognises that everyone has the right to liberty and security of person, and provides that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. At the same time, Article 9(3) acknowledges that a person awaiting trial may be detained, although it states that such detention should not be the general rule.

Amendments to the NI Act by the Bill authorise the detention of an accused person for the purposes of a trial held in a venue outside Norfolk Island. Specifically, section 60F, as amended by the Bill, requires a prison officer, by warrant issued by a court officer or a magistrate of a state or territory court, to detain the accused person, and authorises the detention of the accused for as long as is necessary for the execution of the order. Such detention is only authorised on the grounds and in accordance with the procedures that are established by law, as required by Article 9(1) of the ICCPR. Moreover, the detention is subject to the power of the relevant state or territory court to grant bail. New subsection 60AA(4) of the NI Act expressly provides that the criminal procedure laws of the relevant state or territory, including the relevant arrest, custody and bail laws, apply to a state or territory court exercising jurisdiction under these provisions. Section 60F of the NI Act, as amended, is closely modelled on the existing section 60F, which was part of the amendments to the NI Act in 2018 authorising the Supreme Court of Norfolk Island to sit outside the Norfolk Island in its criminal jurisdiction when not contrary to the interests of justice.

The amended section 60F, consistent with the existing provision, does not deal with the conditions of the accused person's detention. Rather, subsection 60F(4), as amended, provides that, while in custody, the accused person is to be dealt with in the same manner, and subject to the same laws, as if the detention had been authorised under the law of the relevant state or territory. Article 10(2)(a) of the ICCPR requires that, save in exceptional circumstances, accused persons be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. Giving effect to this requirement is a matter dealt with under the law of the relevant state or territory.

The right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or to unlawful attacks on their honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. However, the right to privacy under the ICCPR is not an absolute right. The right can be limited if the limitation is not incompatible with the right itself and the limitation is authorised by law, is for a legitimate objective and is reasonable, necessary and proportionate to that objective.

Treasury Acts amendments

Provisions authorising the collection, use and disclosure of information inserted into the Corporations Act by Schedule 2 to the Bill engage the right to privacy in Article 17 of ICCPR.

These provisions are necessary in order to enable Norfolk Island companies to be registered under the Corporations Act. For example, the names and addresses of the directors of a company are required for a company to be registered.

Information about Norfolk Island companies provided to ASIC may be included on the companies register, which is publicly available. Information included on this register is information that is expected to be available about all companies to enable persons to do business with companies. This is similar to information that may be currently publicly available about companies under the Norfolk Island companies register.

The use and disclosure of information obtained by ASIC under the new provisions inserted by Schedule 2 to the Bill will be covered by the confidentiality regime in section 127 of the ASIC Act. Section 127 of the ASIC Act requires ASIC to take all reasonable measures to protect from unauthorised use or disclosure information given to ASIC in or in connection with the performance of its functions or the exercise of its powers under the corporations legislation. Section 127 of the ASIC Act sets out circumstances in which such information may be used or disclosed.

Section 127 of the ASIC Act provides strong protections for the way in which information obtained under the provisions inserted by Schedule 2 to the Bill may be disclosed by ASIC.

The provisions authorising the collection, use and disclosure of information inserted into the Corporations Act by Schedule 2 to the Bill are compatible with, and make provision proportionate to, the right to privacy. This is for the reasons noted above, particularly the necessity of ASIC being able to obtain and use information to enable Norfolk Island companies to be registered under the Corporations Act (including the necessity of making certain of that information publicly available on the companies register) and the protection of that information afforded by section 127 of the ASIC Act.

Bankruptcy Act amendments

The right to privacy may be engaged by the measures in Part 1 of Schedule 3 as they grant powers to collect, compel and transfer information relating to a transitional bankrupt. This includes personal information such as the bankrupt's name, address and date of birth.

In particular, the right to privacy may be engaged by:

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the recording of information on the National Personal Insolvency Index

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empowering the Official Receiver to compel the Registrar of the Norfolk Island Supreme Court and the Norfolk Island official trustee to provide information, and

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the transfer of information held by the Norfolk Island official trustee to the Commonwealth Official Trustee.

The right to privacy in Article 17 of the ICCPR may be subject to permissible limitations, where these limitations are authorised by law and are not arbitrary. To the extent that the measures in Schedule 3 limit the right in Article 17, they are lawful and not arbitrary.

The amendments made by the Bill that mandate personal information to be recorded on the National Personal Insolvency Index and empower the Official Receiver to compel the Norfolk Island Registrar or Official Trustee to provide information are for a legitimate purpose in the public interest and limited to disclosures necessary to achieve this purpose. In particular, they ensure an accurate public record of bankruptcies and transparency for creditors and other members of the public, such as employers and finance lenders, about a person's bankrupt status.

The Bill enables the collection and disclosure of information in relation to Norfolk Island bankruptcies in a manner that is consistent with the current treatment of Commonwealth bankruptcies. In addition, the Bankruptcy Regulations will apply to protect the public disclosure of information where the Official Receiver decides, on application by the debtor, that information not be included on the National Personal Insolvency Index where disclosure may jeopardise the debtor's safety, or is inaccurate or misleading.

Likewise, the amendments made by the Bill that allow information about a transitional bankrupt to be transferred to the Commonwealth Official Trustee are for the legitimate purpose of ensuring the Commonwealth Trustee has sufficient information about the bankrupt to allow the Official Trustee to effectively and efficiently administer the bankruptcy.

Privacy Act amendments

The right to privacy is engaged by the measures in Part 3 of Schedule 3 of the Bill which amend the Privacy Act. In particular, the amendments to the definition of 'agency' will have the effect of including in this definition:

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A body (whether incorporated or not), or a tribunal, established for a public purpose by or under a law of a state or territory as in force in an external territory, other than a body exempted by the minister in the definition.

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A person holding or performing the duties of an office established by or under, or an appointment made under, a law of a state or territory as in force in an external territory, other than an office or appointment exempted by the minister in the definition.

These amendments will clarify the application of the Privacy Act with respect to these public bodies and offices established in the external territories, for instance a local government body established under an applied state law. The amendments by clarifying that the Privacy Act will ordinarily apply to these bodies and offices enhances the right to privacy. In this context, it is anticipated that the minister would only exempt, by legislative instrument, such a body, or office if satisfied that the relevant body or office would be subject to a law that provides equivalent, or substantially similar, requirements relating to the use of personal information as are provided by the Privacy Act. This may be the case, for instance, where the relevant body, or office is subject to an applied state or territory law which deals with the use of personal information by public bodies, such as the Privacy and Personal Information Protection Act 1998 (NSW) which regulates the use of personal information with respect to local government councils in NSW. In such a case, it may be more appropriate for the relevant external territory body or office to be subject to the privacy law requirements of the applied state or territory law rather than the Privacy Act.

The Bill also engages the right to privacy by amending the definition of 'Australian law' in the Privacy Act to avoid any doubt that this definition includes the laws of a state or territory applied in an external territory or the Jervis Bay Territory under a Commonwealth Act. This clarifies the application of the APPs to laws in force in the external territories and the Jervis Bay Territory. The present definition of 'Australian law', inserted into the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 does not expressly refer to applied state and territory laws, although these laws would have been included in the ordinary meaning of 'law' for the purposes of the former Information Privacy Principles, which were replaced by the APPs in 2014. By clarifying that these laws in force in the external territories are 'Australian laws' for the purposes of the APPs, which regulates the collection, use and disclosure of personal information, the right to privacy is further enhanced.

The right to freedom of expression and to take part in cultural life

Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination.

Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the right of everyone to take part in cultural life.

Amendments to the Broadcasting Services Act facilitate the transition of existing Norfolk Island television and radio services from the Norfolk Island Broadcasting Act to the Broadcasting Services Act to enable any further broadcasting planning and licensing in respect of Norfolk Island to be done under this Act. This promotes the right of Australians to freedom of expression, consistent with Article 19(2) of the ICCPR.

The United Nations Committee on Economic, Social and Cultural Rights has noted that the right to take part in cultural life includes the right of everyone to share cultural knowledge and expressions with others and to know and understand his or her own culture. The measures in Schedule 4 to the Bill are consistent with the right of Australians to take part in cultural life, consistent with Article 15(1)(a) of the ICESCR.

The right to education

Article 13(1) of the ICESCR recognises each person's right to education, and that education is important to 'the full development of the human personality', and enables 'all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups'.

Similarly, Article 28(1) of the United Nations Convention on the Rights of the Child recognises the 'right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity'.

The ESOS Act provides the regulatory framework under which education providers can be registered as providers of CRICOS courses to overseas students. This framework protects the integrity of Australia's international education sector by ensuring that CRICOS registered providers have an appropriate level of Australian Government regulation and oversight.

The amendment supports the right of overseas students on Norfolk Island to receive an education from a CRICOS registered provider. CRICOS registration supports a strong international education sector, which includes appropriate protections for overseas students and appropriate conditions for education providers, allows Australia to promote the right to education, especially to overseas students, including children studying in primary and secondary school.

Conclusion

The Bills are compatible with human rights because they promote the protection of human rights and to the extent that the Bills may limit human rights, those limitations are reasonable, necessary and proportionate.