House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Housing and Assistant Treasurer, the Hon Michael Sukkar MP)

Chapter 5 - Statement of Compatibility with Human Rights

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

Schedule 1 - Temporary full expensing of depreciating assets and other amendments

5.1 Schedule 1 to 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

5.2 Schedule 1 to the Bill amends the temporary full expensing and backing business investment provisions in the income tax law to provide further flexibility for entities to access the concessions. Schedule 1 to the Bill also makes other clarifications to the operation of the temporary full expensing and temporary loss carry back provisions.

Human rights implications

5.3 Schedule 1 to the Bill does not engage any of the applicable rights or freedoms.

Conclusion

5.4 Schedule 1 to the Bill is compatible with human rights as it does not raise any human rights issues.

Schedule 2 - Amendments of the consumer data right

Overview

5.5 Schedule 2 to the Bill amends the CC Act by reallocating the responsibility for conducting sectoral assessments and making consumer data rules. Other miscellaneous amendments are also made to the CC Act to assist the clarity and efficiency of the CDR regime. These include amendments to the Privacy Safeguard provisions.

Human rights implications

5.6 Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interferences with an individual's privacy, family, home or correspondence. It also provides that everyone has the right to the protection of the law against such interference or attacks.

5.7 This right is engaged by Schedule 2 to the Bill because CDR provisions dealing with when Privacy Safeguards begin to apply to entities that deal with CDR data, and how they apply, have been amended to ensure they clearly reflect the legislative intent and best practice operation of the safeguards.

5.8 However, the right is enhanced, not limited by these amendments because they strengthen Privacy Safeguards by:

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requiring all accredited persons, not just accredited data recipients, to comply with both Privacy Safeguard 1 (requirements for a CDR entity's data management policies) and Privacy Safeguard 2 (anonymity/pseudonymity of CDR consumers' identity);

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enabling the Information Commissioner to assess whether a CDR participant (including, as a result of these amendments, an accredited person) is complying with the Privacy Safeguards in relation to their handling of CDR data; and

enabling the Information Commissioner to handle complaints and undertake investigations regarding an accredited person's compliance with relevant Privacy Safeguards.

5.9 The right to protection from arbitrary or unlawful interference with privacy under Article 17 of the ICCPR is therefore engaged but not limited by these amendments.

Conclusion

5.10 Schedule 2 to the Bill is compatible with human rights, because it engages but does not limit human rights. Schedule 3 - Incentivising charities to join the National Redress Scheme

5.11 Schedule 3 to 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

5.12 Schedule 3 to the Bill amends the definition of basic religious charity in section 205-35 of the ACNC Act so that an entity is not a basic religious charity if:

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the entity is identified as being involved in the abuse of a person, either:

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in an application for redress under section 19 of the Redress Act; or

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in response to a request for information from the Operator under section 24 or 25 of the Redress Act; and

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the application for redress relating to the entity has not been withdrawn under section 22 of the Redress Act; and

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the entity does not join the Redress Scheme by becoming a participating non-government institution by the relevant day.

5.13 The purpose of these amendments is to incentivise basic religious charities to join the Redress Scheme if the charity may be responsible for institutional child sexual abuse.

Human rights implications

5.14 The amendments in Schedule 3 to the Bill engage the following human rights and freedoms:

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the right to state-supported recovery for child victims of abuse under Article 39 of the Convention on the Rights of the Child; and

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the right to protection from arbitrary or unlawful interference with privacy under Article 17 of the International Covenant on Civil and Political Rights.

Right to state-supported recovery for child victims of abuse

5.15 The amendments in Schedule 3 to the Bill promote the right to state-supported recovery for child victims of neglect, exploitation and abuse under Article 39 of the Convention on the Rights of the Child by incentivising basic religious charities to join the Redress Scheme.

5.16 The Redress Scheme supports the recovery of people who have experienced institutional child sexual abuse by enabling recognition of past abuse and providing access to redress, including counselling and psychological care services.

5.17 Incentivising additional entities to join the Redress Scheme, which is administered by the Australian Government, will result in more people being able to access redress under the Redress Scheme.

Right to protection from arbitrary or unlawful interference with privacy

5.18 The amendments in Schedule 3 to the Bill engage the right to protection from arbitrary or unlawful interference with privacy in Article 17 of the International Covenant on Civil and Political Rights as:

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officers of the Redress Scheme will need to contact a basic religious charity to advise that an application for redress has been received in relation to the entity, to give the entity an opportunity to join the Redress Scheme before losing its basic religious charity status;

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officers of the Redress Scheme will need to provide information to the ACNC Commissioner to allow the ACNC Commissioner to effectively administer the new provisions; and

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the ACNC may need to liaise with an entity about whether it is a basic religious charity.

5.19 These exchanges of information may involve personal information within the meaning of the Privacy Act 1988.

5.20 The purpose of these exchanges of information is to allow the new provisions to operate effectively. For example, the disclosure of information from officers of the Redress Scheme to the ACNC Commissioner ensures the ACNC Commissioner knows which registered entities are no longer basic religious charities. This will be important for the ACNC Commissioner in administering the ACNC Act, as different obligations exist under that Act for basic religious charities and other registered entities.

5.21 The protected information regime in the Redress Act would apply to the use and disclosure of much of this information. Additionally, the obligations under the Privacy Act 1988 relating to the collection, use and integrity of personal information applies to officers of the Redress Scheme, the ACNC, and a number of affected charities.

5.22 To the extent the amendments in Schedule 3 to the Bill interfere with privacy, that interference is reasonable and proportionate to the legitimate objective of incentivising basic religious charities to join the Redress Scheme.

Conclusion

5.23 Schedule 3 to the Bill is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the legitimate objective of encouraging basic religious charities to join the Redress Scheme.

Schedule 4 - Minor and technical amendments

5.24 Schedule 4 to 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

5.25 Schedule 4 to the Bill makes a number of minor and technical amendments to various Treasury portfolio laws. These amendments are part of the Government's ongoing commitment to the care and maintenance of Treasury portfolio legislation.

5.26 The minor and technical amendments correct typographical and numbering errors, bring provisions in line with modern drafting conventions, repeal inoperative provisions or Acts, remove administrative inefficiencies and unintended consequences, update references, and ensure that the law gives effect to the original policy intention.

Human rights implications

5.27 Schedule 4 to the Bill engages the following human rights and freedoms:

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the right to a fair trial under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR); and

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the right to protection from arbitrary or unlawful interference with privacy under Article 17 of the ICCPR.

Right to a fair trial

5.28 The amendment made to section 14ZL of the Taxation Administration Act 1953 by item 76 broadens the types of law that can allow a dissatisfied taxpayer to seek review of a decision under Part IVC to include legislative instruments.

5.29 This amendment promotes the right to a fair trial under Article 14(1) of the ICCPR. This right is a fundamental part of the rule of law and the proper administration of justice. It provides that all persons are equal before the courts and tribunals and have access to justice.

5.30 Under Part IVC, as currently drafted, the ability for a dissatisfied taxpayer to object against a relevant decision must be provided for in an Act (including the provision as applied by another Act) or in regulations relating to taxation. The ability to specify the availability of review under Part IVC is not extended to any other decisions made under other legislative instruments, such as guidelines or rules.

5.31 The amendment provides taxpayers with greater access to justice by broadening the scope of circumstances under which a dissatisfied taxpayer may seek review of a decision made under Part IVC of the Taxation Administration Act 1953.

Right to protection from arbitrary or unlawful interference with privacy

5.32 The amendments to Division 355 of the Taxation Administration Act 1958 inserted by items 143 and 144 engage the right to protection from unlawful or arbitrary interference with privacy under Article 17 of the ICCPR by allowing the Commissioner of Taxation to disclose protected tax information to the Registrar.

5.33 The amendments allow the sharing of protected tax information with the Registrar. The amendments are being made to ensure that the registries modernisation framework, to be inserted by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020, can operate as intended.

5.34 The amendments are consistent with the right to protection from unlawful or arbitrary interference with privacy because disclosures of personal information will only be made if it relates to the performance of the Registrar's functions, or the exercise of the Registrar's powers, in relation to an entity. Further, disclosure is limited to instances where the Commissioner of Taxation is appointed Registrar. This ensures that the ability to share protected tax information is proportionate to the achieving the policy intent of an effectively functioning Registrar.

5.35 Similarly, amendments that are being made to Part 6.7A of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, Part 9.1A of the Corporations Act 2001 and Part VA of the Income Tax Assessment Act 1936, inserted by items 112, 113, 123, 124 and 126 engage the same right to protection from unlawful or arbitrary interference with privacy. These amendments however, relate to the sharing of tax file numbers.

5.36 The amendments allow the Registrar to request, but not compel, a person who is applying for a director identification number to provide their tax file number for the purposes of confirming the person's identity and allows the sharing of tax file numbers between the Commissioner of Taxation and Commonwealth Registrar for the purposes of fulfilling the Registrar's duties. The amendments are being made to ensure that the registries modernisation framework, to be inserted by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020, can operate as intended.

5.37 The amendments are consistent with the right to protection from unlawful or arbitrary interference with privacy because the Registrar may only request, and not compel, the person to supply their tax file number. Further, the Registrar's ability to make this request is limited in its scope and may only be made for the purposes of establishing a person's identity. The amendments achieve the legitimate objective of ensuring the Registrar is able to function effectively, and are proportionate to that objective by providing limitations on the use of the power.

5.38 The sharing of tax file numbers between the Commissioner of Taxation and the Commonwealth Registrar is also consistent with the right to protection from unlawful or arbitrary interference with privacy. The ability to share tax file numbers in this way ensures the functions of the Commonwealth Registrar can operate as intended. The amendment strikes a balance between the right to privacy and ensuring a function Registrar by only allowing the sharing of tax file numbers to facilitate the administration of Part 6.7A of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and Part 9.1A of the Corporations Act 2001.

5.39 The amendment to section 154G(1)(d) of the Competition and Consumer Act 2010 made by item 33 also engages the right to protection from arbitrary or unlawful interference with privacy. However, the amendment is consistent with this right as it does not change the rights or freedoms of individuals currently provided under the Competition and Consumer Act 2010. Rather, the amendments bring the Australian Competition and Consumer Commission's powers in line with new technological arrangements.

Conclusion

5.40 Schedule 4 to 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.