House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)

Chapter 8 Statement of Compatibility with Human Rights

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

Schedule 1 - Amendment of the Fair Work Act 2009

8.1 Schedule 1 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.

Overview

8.2 Part 1 of Schedule 1 to this Bill inserts new Part 6-4C into the Fair Work Act, which temporarily enables employers to issue JobKeeper enabling directions. These can provide (subject to various safeguards) for increased flexibility around employees' hours of work via a new JobKeeper enabling stand down direction, performance of duties and location of work. It also enables employers and employees to make agreements for increased flexibility around annual leave arrangements and days and times of work. The FWC will be able to resolve disputes, including by arbitration.

8.3 New Part 6-4C also requires JobKeeper qualifying employers to meet minimum payment obligations to employees who are subject to these arrangements, including by ensuring that at least the value of JobKeeper payments they receive through the Commissioner is passed on to such employees each fortnight, or the amount they would receive for the work they have performed if that would be greater.

8.4 New Part 6-4C also includes rules about accrual of service and calculation of benefits in certain circumstances, and contains rules about its interaction with other laws.

8.5 The amendments made by Part 1 of Schedule 1 to the Bill will enable the greatest number of workplaces in the national workplace relations system to access and make best use of the JobKeeper scheme, with a view to preserving the greatest number of jobs.

8.6 These amendments are time-limited and will automatically be repealed by Part 2 of Schedule 1 on 28 September 2020.

Human rights implications

8.7 Schedule 1 to this Bill engages the following rights:

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the right to work and rights in work including the right to just and favourable conditions of work - Articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights;

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the right of everyone to social security in Article 9, and the right of everyone to an adequate standard of living for an individual and their family, including adequate food, clothing and housing, and the continuous improvement of living conditions in Article 11 of the International Covenant on Economic, Social and Cultural Rights, and

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The criminal process rights contained in Articles 14 and 15 of the International Covenant on Civil and Political Rights.

The right of everyone to social security and an adequate standard of living

8.8 The objective of facilitating the new JobKeeper payment to employees through employers promotes Article 9 and 11 by providing further payment to assist in achieving an adequate standard of living. The pursuit of this objective also promotes human rights by supporting the Convention on the Rights of Persons with Disabilities.

8.9 The measure is compatible with and promotes the right to social security and an adequate standard of living.

Right to work and rights in work

8.10 The measure engages the right to work and rights in work in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights.

8.11 Article 6(1) recognises the right to work and obliges States Parties to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights encompasses the need to provide the worker with just and favourable conditions of work.

8.12 Article 7 requires that States Parties recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration that provides all workers with fair wages, a decent living and rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

8.13 The measures also support implementation of a range of ILO instruments that Australia has ratified, including the Unemployment Convention 1919 (No. 2), which was adopted with regard to the 'question of preventing or providing against unemployment'.

8.14 Australia has also ratified the ILO's Employment Policy Convention 1964 (No.122) (ILO Convention 122) which the ILO considers a 'priority' governance convention. The measures support Article 1 of ILO Convention 122:

8.15 With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.

8.16 Part 1 of Schedule 1 will help sustain the viability of Australian businesses during the unprecedented Coronavirus pandemic. It will only apply to employers who are accessing the Government's JobKeeper scheme, which will assist businesses affected by the Coronavirus pandemic to cover the cost of the wages of their employees and ensure employees receive a minimum payment even if they are working reduced hours. It will enable employers to temporarily alter a range of conditions of employment of their employees, including to direct employees to work reduced or no hours (referred to as a JobKeeper enabling stand down direction); to work at different locations, including at home; and to perform a broader or different range of duties. Employers will also be able to request that employees take paid annual leave or perform their duties on different days or at different times, and employees must consider and not unreasonably refuse these requests.

8.17 These amendments are subject to a range of safeguards, including mandatory consultation, agreement by the employee for certain changes and a requirement that directions by the employer must not be unreasonable in all of the circumstances. Furthermore, JobKeeper enabling stand down directions can only be used during periods in which the employee cannot be usefully employed for their normal days or hours because of changes to business attributable to the Coronavirus pandemic or government initiatives to slow the transmission of Coronavirus Changes can only be made to an employee's duties where the new duties are safe, including having regard to the nature and spread of Coronavirus, and all existing work health and safety protections continue to apply.

8.18 Part 1 of Schedule 1 creates a dispute resolution mechanism for when employees disagree with this assessment. Failure to comply with an FWC order dealing with a dispute attracts a civil penalty of 60 penalty units for an individual and 300 penalty units for a body corporate. An employer who knowingly purports to give a JobKeeper enabling direction when they are not authorised to do so faces a civil penalty of 600 penalty units for an individual or 3,000 penalty units for a body corporate. Finally, Fair Work Inspectors will be able to exercise their compliance powers under the Fair Work Act to investigate any suspected contraventions of these provisions.

8.19 The amendments seek to balance the impact on employees by providing that employees who are working reduced hours as a result of a JobKeeper enabling direction have a right to request to engage in reasonable secondary employment or undertake training or professional development. Employers must consider and not unreasonably refuse any such requests. To minimise the impact on employees the amendments provide that employers must ensure that affected employees' hourly rates of pay are not reduced from their previous level if they are working reduced hours.

8.20 Critically, where an employee is eligible to receive a JobKeeper payment, the employer must ensure the person's salary is the greater of the JobKeeper payment or the amount that is payable to the employee in relation to the work performed during the fortnight. Employers who fail to comply with these new requirements face civil penalties of 60 penalty units for an individual and 300 penalty units for a body corporate. Finally, the giving of a JobKeeper enabling direction does not amount to a redundancy. This safeguards the ongoing employment relationship that is critical for a person's eligibility for the JobKeeper payment.

8.21 These amendments engage the right to work and rights in work because they will temporarily supersede arrangements that have been collectively bargained at workplaces. The legitimate objective of these measures is to facilitate ongoing employment and support the Australian economy during the Coronavirus pandemic. These time limited measures are designed to support employers to manage their workplace during the Coronavirus pandemic and maximise employee retention rates.

8.22 These measures are reasonable, necessary and proportionate in the context of the extreme economic impacts of the Coronavirus pandemic. The additional capacity for employers to issue directions relating to duties of work and location of work will not only be time limited but will also only be able to be used where the employer reasonably believes that the JobKeeper enabling direction is necessary to continue the employment of the employee.

8.23 In any event, these powers are temporary and are subject to a range of safeguards such as consultation requirements and the ability of parties to have disputes settled by the FWC. Importantly, this measure is implemented in the context of a new JobKeeper payment, which will subsidise wages during this period to facilitate keeping people in work, and is subject to a number of safeguards designed to minimise the impact on employees.

8.24 The measure is compatible with and promotes the right to work.

Criminal process rights

8.25 The Parliamentary Joint Committee on Human Rights Practice Note 2 provides that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the International Covenant on Civil and Political Rights, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of International Covenant on Civil and Political Rights.

8.26 Schedule 1 to this Bill creates new civil penalties. The first applies where an employer fails to satisfy jobseeker payment rules in relation to an eligible employee. This attracts a maximum penalty of 60 penalty units for an individual and 300 penalty units for a body corporate, or 600 penalty units for an individual and 3,000 penalty units for a body corporate if the contravention is a 'serious contravention' where a person knowingly contravened the provision as part of a systematic pattern of conduct (section 557A of the Fair Work Act).

8.27 Civil penalties also apply where a person:

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fails to comply with an FWC order dealing with a dispute about the operation of the new Part;

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fails to pay an employee a wage that is the greater of the amount of the JobKeeper payment payable to the employer for the employee for the fortnight, or the amount that is payable to the employee in relation to the performance of work during that fortnight;

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reduces the hourly rate of pay of an employee who is working reduced hours as a result of a JobKeeper enabling direction; or

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fails to consider or unreasonably refuses a request from an employee who is working reduced hours for secondary employment or training.

8.28 Contravening these requirements attracts a maximum civil penalty of 60 penalty units for an individual and 300 penalty units for a body corporate.

8.29 Finally, civil penalties will apply to employers who purport to give a JobKeeper enabling direction where they knew the direction was not authorised by new Part 6-4C of the Fair Work Act. This attracts a maximum civil penalty of 600 penalty units for individuals and 3,000 penalty units for bodies corporate to reflect the seriousness of this conduct.

8.30 The penalty provisions of the Fair Work Act are expressly classified as civil penalties (section 549). These provisions create pecuniary penalties in the form of a debt payable to the Commonwealth or other person. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. There is no possibility of imprisonment for failing to pay a penalty (section 571).

8.31 The purpose of these penalties is to encourage compliance with the Fair Work Act, which supports the implementation of a number of Australia's obligations under international law. These penalties will generally apply to a defined class of employers (that is, those qualifying or purporting to qualify for the JobKeeper scheme) and not the public in general. While the Fair Work Ombudsman has enforcement powers, proceedings may also be brought by an affected employee or union. These factors all suggest that the civil penalties imposed by the Fair Work Act are civil rather than criminal in nature.

8.32 The severity of the relevant civil penalties should be considered low. They are pecuniary penalties (rather than a more severe punishment like imprisonment) and there is no sanction of imprisonment for non-payment of penalties.

8.33 As the proposed new civil penalties may reasonably be characterised as not being criminal in nature, the specific criminal process guarantees in Articles 14 and 15 will not apply. In any event, however, new civil penalties comply with the requirements of Articles 14 and 15 in that they would not apply retrospectively (Article 15(1)), the normal standard of proof applies (Article 14(2)), and there is no risk of double punishment as there is no comparable criminal penalty (Article 14(7)).

8.34 On this basis, the proposed new penalties should not be considered criminal for the purposes of human rights law. In any event, the proposed penalties and the civil penalty regime in the Fair Work Act more broadly comply with the requirements of Article 14 and 15 of the International Covenant on Civil and Political Rights.

Conclusion

8.35 Schedule 1 to this Bill is compatible with human rights.

Schedule 2 - Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 and consequential amendments

8.36 The Payments and Benefits Bill and Schedule 2 to this Bill are 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

8.37 The Payments and Benefits Bill establishes a framework for the Treasurer to make rules to provide for the Commissioner to make payments to eligible entities. Under this payment framework, the Commissioner has general administration of these payments.

8.38 The framework also sets out:

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the manner in which payments are made;

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rules for overpayments (including the application of interest);

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the process for the review of decision relating to the payments; and

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the applicable record-keeping requirements.

8.39 Details of eligibility for particular payments as well as the amount of payments and the time when they are to be paid are to be set out in the rules made by the Treasurer. This allows for flexibility of the arrangements to introduce and modify payments to appropriately respond to the impacts of the Coronavirus.

8.40 The payments may only be made by the Commissioner from the day of commencement and only in respect of the period from 1 March 2020 until 31 December 2020 (inclusive).

8.41 Schedule 2 to this Bill makes a number of consequential amendments to facilitate the Payments and Benefits Bill, including:

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technical amendments to the ITAA 1936, ITAA 1997, the Social Security Act and the Veterans' Entitlement Act 1986 to ensure a consistent treatment of the Coronavirus economic response payments;

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amendments of a machinery nature to the Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Act 2020;

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providing a power in the Coronavirus Omnibus Act for the Minister for Families and Social Services to determine modifications to Part 5 of the SSAA - the modifications to the SSAA must be in connection with payments under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020, including applications for such payments; and

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amendments to the PPL Act to address relevant changes to paid parental leave as a result of the Coronavirus economic response payments.

Human rights implications

8.42 The Payments and Benefits Bill does not engage any of the applicable rights or freedoms.

8.43 Schedule 2 to this Bill engages the following human rights or freedoms:

The right to protection and assistance for families

8.44 The right to protection and assistance to families, particularly mothers during a reasonable period before and after childbirth in Article 10(2) of the International Covenant on Economic, Social and Cultural Rights, recognises protection should be accorded to mothers. During such a period, working mothers should be accorded paid leave or leave with adequate social security benefits.

8.45 Schedule 2 to this Bill engages these rights by broadening the eligibility criteria under the PPL Act to allow more women to access paid parental leave.

8.46 The United Nations Committee on Economic, Social and Cultural Rights has commented that Article 7 of the International Covenant on Economic, Social and Cultural Rights requires State Parties to take steps to 'reduce the constraints faced by men and women in reconciling professional and family responsibilities by promoting adequate policies for childcare and care of dependent family members'.

The right to maternity leave

8.47 The right to maternity leave is contained within Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women and Article 10(2) of the International Covenant on Economic, Social and Cultural Rights. Article 11(2)(b) of the Convention requires States Parties 'to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances'.

8.48 The amendments in Schedule 2 to this Bill do not interfere with the existing rights under the Fair Work Act 2009, including access to 12 months of unpaid parental leave, noting that Australia has a reservation in relation to Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women.

The right to social security

8.49 Article 9 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to social security, and Article 26 of the Convention on the Rights of Children recognises the right of every child to benefit from social security. Schedule 2 to this Bill engages these rights by broadening the eligibility criteria under the PPL Act and increasing the number of claimants who can receive the entitlement to paid parental leave during the COVID-19 pandemic.

The right to privacy

8.50 The amendments made by Schedule 2 to this Bill engage the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights by widening the purposes for which tax file numbers can be shared between the Commissioner and other Commonwealth agencies to include purposes related to the JobKeeper payment in order to permit sharing in order to address issues of fraud and overpayment.

8.51 Schedule 2 to this Bill is compatible with Article 17 of the International Covenant on Civil and Political Rights, as its engagement with the prohibition on interference with privacy will neither be unlawful nor arbitrary. The amendments are not arbitrary as the amendments are aimed at a legitimate objective and constitute an effective and proportionate means of achieving that objective.

8.52 This Schedule's engagement with the prohibition on interference with privacy is lawful as the amendments authorise the disclosure of only in relation to the administration of the JobKeeper payment. The amendments constitute an effective and proportionate means of achieving these objectives.

8.53 Schedule 2 to this Bill also provides a power for the Minister for Families and Social Services to determine modifications to Part 5 of the SSAA. The modifications to the SSAA must be in connection with payments under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020, including applications for such payments. This part of the Schedule does not engage with the right to privacy because it does not itself make any substantive amendment to the SSAA.

Conclusion

8.54 The Payments and Benefits Bill and Schedule 2 to this Bill are compatible with human rights as it does not raise any human rights issues.

Schedule 3 - Guarantee of lending to small and medium enterprises

8.55 Schedule 3 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.

Overview

8.56 Schedule 3 to this Bill amends the definition of financial institution in section 4 of the Guarantee of Lending Act. The amendment ensures that exclusions in the Financial Sector (Collection of Data) Act 2001 of certain corporations from the meaning of registrable corporation, which are relevant in determining who is a non-ADI lender, are disregarded for the purposes of the definition of financial institution in section 4 of the Guarantee of Lending Act.

Human rights implications

8.57 Schedule 3 to this Bill does not engage any of the applicable rights or freedoms.

Conclusion

8.58 Schedule 3 to this Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 4 - Amendments to support the child care sector

8.59 Schedule 4 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.

Overview

8.60 New subsections 105E(4) to (7) of the Family Assistance Administration Act modify how Child Care Subsidy entitlements are reviewed when an individual who is a member of a couple for some but not all of the Child Care Subsidy fortnights in an income year.

8.61 There are no changes to how Child Care Subsidy is calculated and paid during the income year based on estimates for the individual's adjusted taxable income. These amendments only affect the review of determinations made in the previous income year once the individual meets the Child Care Subsidy reconciliation conditions and accurate information about their actual adjusted taxable income is available.

8.62 Subsection 233(2) of the Family Assistance Administration Act is amended to ensure that payments of Additional Child Care Subsidy and funding agreements for certain grants programs (as prescribed by the Child Care Subsidy Minister's Rules) occur under the existing standing appropriation for payments made under the Family Assistance Law (pursuant to subsection 233(1) of the Family Assistance Administration Act).

8.63 New subsection 233(3) of the Family Assistance Administration Act requires the Child Care Subsidy Minister's Rules to prescribe the total amount of funding appropriated under subsection 233(1) of that Act that may be allocated for each of the grants programs prescribed in the Child Care Subsidy Minister's Rules for the purposes of subsection 233(2) of the Family Assistance Administration Act.

8.64 This is an accountability measure intended to ensure that decisions on annual funding amounts for prescribed grants programs established under section 85GA of the Family Assistance Act may continue to be subject to Parliamentary scrutiny (through its inclusion in a legislative instrument).

Human rights implications

Ensuring the rights of parents and children

8.65 Article 3 of the Convention on the Rights of the Child recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. Article 19 of the Convention requires that appropriate measures are taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.

8.66 Early learning and child care play a vital role in the development of Australian children. Their preparation for school and access to this care is also one of the most effective early intervention strategies to break the cycle of poverty. The amendments in Schedule 4 to this Bill facilitate families' continued access to quality child care services and therefore safeguard the best interests of children to be educated and cared for in safe and healthy environments, particularly where there is increased demand for higher levels of government support in times of national emergency or other exceptional circumstances.

8.67 Schedule 4 to this Bill achieves this by removing restrictions around the requirements for the annual appropriation of Additional Child Care Subsidy payments, as well as payments made for child care-related grant programs, so that these payments are linked instead to a special appropriation already established under the Family Assistance Administration Act. This measure ensures that the Government is able to respond effectively to periods of increased demand for government support by child care services and the families relying on those serviced, for example during times of national emergency or disaster.

Right to an adequate standard of living

8.68 Article 27 of the Convention on the Rights of the Child requires that State Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

8.69 Schedule 4 to this Bill advances this right by helping to ensure that children, particularly those in vulnerable and disadvantaged situations (that would in most cases be eligible for Additional Child Care Subsidy), may continue to access quality early childhood education and care even in the face of increased demand for additional support and subsidy, such as during the Coronavirus.

8.70 In particular, the amendments ensure the payment of Additional Child Care Subsidy occurs under a standing appropriation (rather than capped and annual appropriation) and ensures that children (and their families) who are experiencing financial hardship or are otherwise in vulnerable positions in times of generally increased demand for government support and subsidies may continue to benefit from a high standard of education and care.

Right to social security

8.71 Article 9 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to social security.

8.72 Schedule 4 to this Bill allows individuals whose partnership status changes throughout the year to receive fairer determinations of their Child Care Subsidy entitlements at Child Care Subsidy reconciliation due to a modified calculation of the individual's adjusted taxable income, which incorporates their partner's adjusted taxable income throughout the year in a manner that is fairer and more consistent.

Conclusion

8.73 Schedule 4 to this Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 5 - Modification of information and other requirements

8.74 Schedule 5 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.

Overview

8.75 Schedule 5 to this Bill provides a temporary mechanism to change arrangements for meeting information and documentary requirements under Commonwealth legislation, in response to circumstances relating to the Coronavirus. In particular, social distancing measures are expected to cause difficulties with meeting information and documentary requirements, including signature, witnessing and production of documents.

8.76 Under this mechanism, a responsible Minister may determine that provisions in Commonwealth legislation containing particular information or documentary requirements are varied, do not apply or that another provision specified in the determination applies, for a specified time period. The mechanism must not be exercised by a responsible Minister unless the Minister is satisfied that the determination is in response to circumstances relating to the Coronavirus.

8.77 The mechanism is temporary and will be repealed at the end of 31 December 2020. Any determination made under the mechanism will also cease to operate after 31 December 2020.

Human rights implications

8.78 Schedule 5 to this Bill does not engage any of the applicable rights or freedoms.

8.79 Each instrument made under the power provided for in Schedule 5 to this Bill will be disallowable and will include a human rights compatibility statement assessing the impact of the instrument on human rights and freedoms.

Conclusion

8.80 Schedule 5 to this Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 6 - Additional support for veterans

8.81 Schedule 6 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.

Overview

8.82 Schedule 6 to this Bill allows the Veterans' Minister to:

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increase, by legislative instrument, the amount paid to persons receiving a payment under a provision of the Veterans' Law by the amount of the COVID-19 supplement (currently $550 per fortnight); and

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vary the qualifications and eligibility for payments under the Veterans' Law by legislative instrument.

8.83 These instruments may only be made after consultation with the Social Services Minister. Both the powers and any instruments made using them will end on 31 December 2020.

Human rights implications

8.84 Schedule 6 to this Bill engages the right of everyone to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights, and the right of everyone to an adequate standard of living for an individual and their family, including adequate food, clothing and housing, and the continuous improvement of living conditions in Article 11 of the Covenant; and

8.85 Articles 9 and 11 are promoted by providing further payment to assist in achieving an adequate standard of living. This is achieved by creating a new category of supplementary payment in response to the Coronavirus pandemic.

Conclusion

8.86 Schedule 6 to this Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 7 - Tax secrecy

8.87 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.

Overview

8.88 Schedule 7 to this Bill makes amendments to subsection 355-65(8) of Schedule 1 to the TAA 1953 to include an additional purpose for which protected information can be disclosed, and to whom.

8.89 A taxation officer will be permitted to disclose de-identified protected information to the Treasury Secretary for the purposes of policy development, or analysis, in relation to the Coronavirus, including in relation to any programs introduced in response to the economic impacts of the Coronavirus.

8.90 Disclosures can be made until 30 June 2023, after which the law will self-repeal.

Human rights implications

8.91 The amendments made by Schedule 7 to this Bill engage:

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the right to be presumed innocent until proven guilty according to the law in Article 14(2) of the International Covenant on Civil and Political Rights; and

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the prohibition on arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights.

8.92 The amendments made by Schedule 7 to this Bill engage Article 14(2) of the International Covenant on Civil and Political Rights as the amendments provide for an exception to the prohibition of a taxation officer disclosing protected information. The prohibition is a criminal offence. A taxation officer wishing to rely on the exception bears the evidential burden in relation to the matters.

8.93 It is appropriate that the evidential burden be reversed in this situation as matters relating to the disclosure and for which purposes (such as what information is being disclosed, whether it is de-identified and for what purpose the disclosure is being made) are peculiarly within the knowledge of the person making the disclosure and can be raised in making their defence. It would be significantly more difficult and costly for the prosecution to disprove these facts.

8.94 The amendments made by Schedule 7 to this Bill are compatible with Article 17 of the International Covenant on Civil and Political Rights as its engagement will neither be unlawful or arbitrary.

8.95 In order for an interference with the right to privacy to be permissible, the interference must:

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be authorised by law;

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be for a reason consistent with the International Covenant on Civil and Political Rights; and

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be reasonable in the particular circumstances.

8.96 The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

8.97 The engagement with the prohibition on the interference with privacy is lawful as the amendments authorise the disclosure of de-identified information for the purposes of policy development, or analysis, in relation to the Coronavirus, including for programs introduced in response to the economic impacts of the Coronavirus. De-identified information does not include the name, contact details or Australian Business Number of the entity. Therefore appropriate safeguards are in place.

8.98 The amendments are not arbitrary as they are aimed at a legitimate objective, and are reasonable and proportionate in achieving that objective. The Coronavirus pandemic has required quick, efficient and effective policy responses to deal with its economic impacts. The collating and analysing of available information to inform policy development will be vital as Australia enters into the recovery phase of the pandemic.

8.99 The amendments are also proportionate. The amendments will self-repeal after 30 June 2023. This reflects the intention that disclosures will be made for the purposes of policy development, or analysis, in relation to the Coronavirus pandemic, and as Australia recovers from the pandemic.

8.100 The amendments are reasonable in achieving this objective as they allow the disclosure de-identified information about the affairs of an entity held by the Commissioner to the Treasury Secretary for certain purposes. They are also proportionate in achieving this objective as they only allow the disclosure of de-identified information and are time limited.

Conclusion

8.101 Schedule 7 to this Bill is compatible with human rights as it does not limit any applicable human rights or freedoms.