Senate

Explanatory Memorandum

(Circulated by the authority of the Prime Minister, the Hon Scott Morrison MP)

Statement of Compatibility with Human Rights

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

ARCHIVES AND OTHER LEGISLATION AMENDMENT BILL 2021

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 Bill

This Bill would strengthen the confidentiality of information given to the Independent Review into the workplaces of Parliamentarians and their staff conducted by the Sex Discrimination Commissioner, by:

•

excluding a right of access under the Freedom of Information Act 1982 to all documents provided to, or created by, the Independent Review; and

•

providing that these records would come into the open access period under the Archives Act 1983 ninety-nine years after the year the record came into existence.

These proposed amendments would not prevent the Independent Review from publishing such information as it considers appropriate.

Human rights implications

This Bill engages the following rights:

•

The right to freedom of expression in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), in so far as that article includes freedom to seek, receive and impart information; and

•

The right to privacy in Article 17 of the ICCPR, in so far as that article includes the right to the protection of the law against unlawful or arbitrary interferences with an individual's privacy.

Article 19 of the ICCPR provides that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public health or morals.

Article 17 of the ICCPR provides that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

The Bill proposes to exclude a right of access under the Freedom of Information Act 1982 to all documents provided to, or created by, the Independent Review.

The Bill also makes amendments to the Archives Act 1983 so that records of that kind would come into the open access period 99 years after the year the record came into existence.

The proposed amendments are intended to encourage individuals to come forward to the Independent Review and give information that is relevant to its terms of reference. This information could include accounts which are of a deeply personal and sensitive nature, as well as allegations about the conduct of other people.

To the extent that the measures in the Bill would limit access to information, these measures limit the right to seek, receive and impart information in Article 19(2). However, the limitations placed on Article 19(2) are permissible in that they meet the requirements of Article 19(3) as they will be provided by law, and are necessary for the respect of the rights or reputations of others. The measures are designed to protect personal information (including potentially sensitive information) as well as confidential information given to the Independent Review and to encourage individuals to come forward and participate in the Independent Review.

To the extent that the measures in the Bill engage Article 17 of the ICCPR, the measures enhance the right to privacy of the individual who is providing information to the Independent Review, and the privacy of third parties who may be named in the information.

Conclusion

The Bill is compatible with human rights; to the extent Article 19(2) is limited by the Bill, the restriction is permissible under Article 19(3) of the ICCPR, as the amendments are provided by law and are necessary for the respect of the rights or reputations of others. The Bill enhances the right to privacy under Article 17 of the ICCPR.