Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697640634366.pdf (Australia)
Appendix 3 Correspondence THE HON MICHAEL KEENAN MP for Justice Minister Minister Assisting the Prime Minister for Counter-Terrorism MS16-018127 Joint Committee on Human Rights Chair Parliamentary Sl.l ll House Parliament CANBERRA ACT 2600 <human.rights@aph.

gov .au> Dear Chair I refer to the letter Human Rights the comments identified Legislation from the Committee Secretary dated 23 November (the Committee) contained in the Committee' brought 2016.

This letter Report 9 of 2016.


In this Report, to my attention the Committee with the Law Enforcement issues compatibility a number of of the Parliamentary Joint Committee on Amendments human rights (State Bodies and Other Measures) Bill 2016 (the Bill).
I have consulted below response the Attorney-General, Senator the Hon George Brandis QC, in providing the Compatibility of measures in Schedule 1 The committee requests the further advice of the Attorney-General as to: whether permitting proportionate raised by and ,- the LECC to access limit on the right to privacy the committee); such powers under the TIA Act constitutes a (including in respect of matters previously an assessment whether with the right to privacy committee).
of the TIA Act could be undertaken to its compatibility (including in respect of matters determine by the raised previously Attorney-General's response Right to privacy in Schedule The provisions ICCPR.

To the extent arbitrary objective and punish and are necessary, of enabling corruption.
1 of the Act engage that Schedule I limits reasonable the right to privacy, and proportionate 17 of the not to the achievement the right to privacy under Article of the legitimate these limitations are the Law Enforcement Conduct Commission (LECC) to identify, investigate Parliament House Canberra ACT 2600 • Telephone: (02) 6277 7290 Facsimile: (02) 6273 7098 Limitations on access to and use of telecommunications data 2 The Committee has raised concerns about: (a)the broad nature of telecommunications data authorisations (b)the ability to subsequently use such information, and ( c)whether the internal for access self-authorisation process to data provides sufficient safeguards in relation to the right to privacy.
to the investigation of criminal activity, including corruption Act 1979 (TIA Act) is limited to specified security and law enforcement of associates.

of a target and and (Interception Access under the Telecommunications of investigations to build a picture data is critical and is used at the early stages network Telecommunications investigations, the target's Access) agencies considers needs of criminal sought.
access The Australian to data be limited access law-enforcement Government to certain agencies has previously 1 crimes.

of serious categories provided national body).


supports (of which the LECC is replacing restricting to specified agencies an existing The Australian both the protection given the early stage at which such disclosures Government of privacy and a response addressing concerns are that There is a two-fold test may authorise the disclosure that must be met before an officer of a criminal may only occur where: of data.
Disclosure law-enforcement agency (1)it is reasonably pecuniary penalty necessary for the enforcement of the public of the criminal revenue, law, a law imposing and or for the protection a (2)the authorising interference officer with privacy of an agency is satisfied on reasonable grounds that any is justifiable and proportionate.2 restricted by their enabling will only be able to authorise are further Agencies officers misconduct investigation (such as the requirement the utility also meets the TIA Act thresholds.
to access to apply for a warrant of data as an investigative the disclosure tool.

legislation.
of data for investigations In the case of the LECC, authorised into corruption, where that enforcement As discussed below, any further data) would fundamentally restrictions undermine and maladministration on the part of New South Wales law provisions safeguard on Human Rights, The internal Committee time, the Committee Amendment (Data requirements existing concerns.3 privacy considered Retention) for internal were previously considered Report of the 4/h Parliament as a part of Twentieth in March 2015.
At this the Parliamentary Joint the Telecommunications Bill 2014 and the majority (Interception of the Committee sufficient provided agency authorisations that observed to address safeguards and Access) Joint Committee 1 Parliamentary Appendix Rights 8-10.
2 Government to the 44'h Parliament, 1 Australian on Human Rights, response to the J 5'h report Twentieth of the 441h Parliament Report of the Parliamentary Amendment and Access) Joint Committee on Human Bill ( 18 March 2015) (Data Retention) Telecommunications (Interception This requirement in response to a recommendation on the Telecommunications from the Parliamentary (Interception Joint Committee Amendment and Access) on was included report Advisory Bill 2014 (February and Security Intelligence (Data Retention) 3Parliamentary [1.237].
Joint Committee 2015) 251. on Human Rights, Twentieth Report of the 441h Parliament (18 March 2015) at 3 telecommunications Once accessed, with the functions imposing enabling legislation impose relating for the purposes the public or protecting a purpose data may only be communicated for the criminal Both the TIA Act and the LECC's on LECC officers who communicate of data for unauthorised to the disclosure of the accessing of enforcing a pecuniary liability purposes.

revenue.
revenue.

criminal penalty agency law, a law connected information Oversight through a warrant process or the Commonwealth Ombudsman data is subject to and use of telecommunications oversight introduced by the Commonwealth Ombudsman.
the Telecommunications through (Interception Act 2015 increase transparency Amendment data by to stringent reporting New record-keeping and Access) requirements and and reporting of the use of telecommunications Access independent obligations (Data Retention) criminal law enforcement agencies.

The LECC will be required to inspection under the TIA Act to compel the disclosure to report Furthermore, are now required of the access agencies and use of data by the agency.
records keep comprehensive of information annually relating on the: to assist The Ombudsman has to agency extensive activities.

powers in its the Ombudsman • types of data accessed in investigations, • length of time data was retained by the service provider prior to an authorisation by an agency,and • type of offences investigated with the use of data.

Both the Ombudsman's to enable report scrutiny.


public and TIA Act annual report will be tabled each year in Parliament that introducing for telecommunications a warrant harm to the ability regime of agencies to would risk serious crime and safeguard national used at the early stages security.

Warrant considers safeguards Government existing The Australian data to augment investigate telecommunications in the loss of evidence.

can result Ombudsman, Commonwealth law enforcement investigations.
how an agency data is commonly has accessed Current serve as an effective arrangements, such as external accountability oversight without mechanism In addition, an oversight and used telecommunications body has the advantage data from end-to-end.

applications processes and are lengthy when delays of an investigation, by the delaying of reviewing to a warrant used to exclude the TIA Act which are subject the powers within Finally, data often provides to telecommunications of an investigation.
Access ensuring from suspicion, others commonly such as telecommunications interception intrusive investigative techniques require the privacy between there is a clear distinction Accordingly, to telecommunications on this distinction detail Further addressing Government supplied 4 data be subject are used in the latter foundational by more can be found in the February a previous (which of access warrant.
2015 response from the Committee impact interception the Australian that access stages information of a telecommunications or surveillance recommendation data and the execution they are not targeted a warrant).

to a warrant process.
to Joint Committee on Human Rights, response to the I 51h report Twentieth I Australian Government to the 44th Parliament, Telecommunications (Interception of the 441h Parliament Report of the Parliamentary Amendment and Access) (18 March 2015) Joint Committee on Human Bill (Data Retention) 4 Parliamentary Appendix Rights 12-14 .. Access to content of communications given the services and devices which can be impacted 4 Government that, considers by the LECC is a reasonable of private communications given the existing safeguards the Act, access within to limitation and proportionate The Australian the content on the right to privacy.
private authorities including are required how the privacy communications the LECC, or any eligible Before it must apply to an independent to consider agency, issuing is able to access authority request of the agency's the content of Issuing for a warrant.

in every instance, of any person the proportionality may be impacted.
warrants Although issued and in relation only be obtained maximum penalty least arrangements bodies inspect agencies may relate to a broad range of services specific for the purpose of investigating offences and devices, a warrant that meet thresholds to services to assist or devices likely in the investigation to be used by the target.
of defined serious Interception offences, generally attracting may only be in the Act identified may warrants a of at or offences to the oversight and state oversight Similar Ombudsman of at least three years imprisonment seven years imprisonment to stored for interception communications.

for access warrants for telecommunications and report to private their exercise on agency authority appropriately.
access data, the Commonwealth to ensure communications law enforcement within Schedule the TIA Act discussed The measures within necessary enforcement, 1 broadly above ensure to the legitimate to privacy.

that any limitations goals of promoting public and protecting on that right are reasonable, in law the law.
enforcing accountability and proportionate investigating the safeguards corruption order through the right However, engage Assessment of the TIA Act prior to the enactment of the Human Rights Act (Parliamentary Scrutiny) Legislation established 2011 is not required to be subject Attorney-General's Department Act to this Committee were discussed in detail Telecommunications in Government (Interception and Access) to a human rights extensive has provided bodies.
and other Parliamentary advice The privacy the assessment.

However, the operation of the TIA of the TIA Act implications of the Bill 2014. scrutiny compatibility regarding responses to the Committee's Amendment (Data Retention) in response National Further, Australia's and Security progressive a human rights TIA Act to ensure in 2013, the Australian If legislation manner.
Government is introduced to recommendation Security 18 of the Report by the Parliamentary Legislation of the Inquiry into Potential Joint Committee revise to comprehensively Reforms of on Intelligence the Act in a to reform the Act, the Department Government will undertake the continually reviews agreed compatibility assessment.

safeguards The Australian are in place to protect that adequate privacy.
The relevant 6277 7300. contact Office is Timothy in the Attorney-General's Roy who can be contacted on Compatibility of measures in Schedule 3 The committee seeks the advice as to: of the minister whether its objective the limitation (including is a reasonable the sufficiency measure and proportionate contained of safeguards in the POC Act); and for the achievement of whether with the right to a fair trial an assessment of the POC Act could be undertaken to determine in light of the committee's concerns.
its compatibility and fair hearing Minister's response Right to a fair.

trial and fair hearing 5 has stated that Schedule 3, which amends the definition of 'lawfully The Committee acquired' class of assets hearing under section 336A of the Proceeds of Crime Act 2002 (the POC Act), broadens the that can be frozen, restrained or forfeited, under Article 14 of the International Covenant limiting the and right to a fair trial on Civil and Political Rights (ICCPR).
3, however, the intended decision Schedule clarifies Australia's WASC 5. to broaden is not intended meaning of in Commissioner the scope of section 3 3 6A in light of the Supreme Police 336A, but instead Court of Western v Huang [2016] of the Australian section Federal or forfeited before courts for civil hearings If Schedule restrained a fair hearing equality at law, the right to a fair and public court or tribunal established by Commonwealth, those courts.
such that the right to a fair hearing This affords an 3 has the practical effect under a proceeds of broadening of crime order, under Article the scope of assets this Schedule that can be frozen, will engage the right to and tribunals, and, in the determination before a competent, hearing independent 14( 1) of the I CCPR.

This right guarantees of criminal charges, State and Territory person affected by law.
Proceedings courts in accordance under the POC Act are proceedings procedures her case, opportunity with relevant to present his or adequate or any suit and impartial heard of is not limited.
The Australian under section or the imposition Articles 14(2)-(7) proceedings 14(1), Government reiterates that proceeds 315 of the POC Act and do not involve of crime orders are classified the determination therefore as civil of a criminal do not engage the rights in charge of a criminal of the ICCPR relating penalty.
These orders to minimum guarantees for a right to a fair hearing under the POC Act provide the items under Schedule 3 do not limit the right to a fair trial consistent under Article with Article 14.5 in criminal As proceedings.

Assessment of the POC Act has requested its compatibility prior to the enactment to be subject The Committee determine established not required Government continually conduct criminal where a Bill amends the Act.
and will continue to a human rights reviews that I engage in a detailed with the right to a fair trial of the Human Rights assessment and a fair hearing.

(Parliamentary of the POC Act to Scrutiny) Act 2011 is Legislation compatibility The Australian assessment.
that it addresses the POC Act to ensure to undertake a human rights compatibility emerging trends assessment in The relevant 6277 7290. contact in my office for this matter is Talitha Try, who can be contacted on I trust this information has been of assistance.

Yours sincerely Michael Keenan 5 See Parliamentary 2015) 39-42.
Joint Committee on Human Rights Thirty-first Report of the 44th Parliament (24 November MS16-018150 ATTORNEY-GENERAL CANBERRA MP Mr Ian Goodenough Chair Parliamentary PO Box 6100 House Parliament CANBERRA ACT 2600 Joint Committee on Human Rights De� j � in response to on Human Rights, 8 of 2016 the letter I am writing Report Committee the Committee's Amendment (Interception following individuals (Notifiable Act 1979 and Access) to their telecommunications Bill 2016 could be amended data under the Data Breaches) access Ms Toni Dawes, dated 9 November and seeks my advice in relation of the Parliamentary 2016.
The letter refers to to whether the Privacy Joint to require Telecommunications notification to from the Committee Secretary (TIA Act).

on the Telecommunications Report Advisory In February Bill 2014 (Data Retention) 2015, the Parliamentary Joint Committee (Interception and Access) on Intelligence and Security's Amendment (PJCIS) Report) (the Advisory scheme.
notification compromising mandatory The PJCIS' recommendation was based on of retained the security notification data breach recommended the introduction requirement of a in of a broad-based data breach mandatory concern about data breaches and the absence Australia.

telecommunications data, Report Consistent requirement to the Advisory with the Government's The Government's response recommendation.
breach notification or loss of, personal information The notification requirement data retained telecommunications access to retained the Act would not fall within following that would cause a likely would apply to data breaches telecommunications data by law enforcement notification unauthorised by service providers the Bill's requirement.

risk of serious harm to individuals.

of this kind involving under the TIA Act.


However, and security lawful agencies under on 3 March 2015 supported response, access a data the Bill would introduce to, unauthorised this disclosure of when their telecommunications for law data is accessed it would hamper investigations.
The covert used where the integrity of an purposes security were notified If individuals or national enforcement in the Act are generally powers contained investigative by revealing compromised investigation would be be delayed in some circumstances, notifications serious terrorism, criminality can be protracted, disclosed.

law reflects the access or otherwise, It is an offence data under Division ( such as counter and would be difficult delayed position.
Notification, to telecommunications could expose that policy to disclose its existence.

risks.

would carry similar or serious child exploitation suggestion into crime) Investigations and organised The Committee's that, to determine when data might be appropriately The existing police the existence methodologies.

of an authorisation for 6 of Part 4-1 of Chapter 4 of the Act.
Parliament House Canberra ACT 2600 Telephone: (02) 6277 7300 Facsimile: (02) 6273 4102 data is subject to telecommunications to a defined to stringent Direct safeguards.

covert and security access agencies.

set of law enforcement within officers or the protection Lawful access data is limited to telecommunications Authorised data where reasonably penalty may authorise requires privacy independent Intelligence that the authorising officer is justifiable oversight and Security.
necessary of the public access those agencies for the enforcement may only allow the disclosure of criminal law, a law imposing of telecommunications a pecuniary revenue.

to telecommunications data for the performance be satisfied and proportionate.

by the Commonwealth Agency access The Australian Security Intelligence of its functions.
that any interference with to comprehensive of grounds is also subject and the Inspector-General on reasonable Ombudsman The Act Organisation The responsible 02 6277 7300. adviser for this matter in my Office is Jules Moxon who can be contacted on Thank you again for writing on this matter.
2 MC16-143309 CANBERRA ATTORNEY-GENERAL Joint Committee on Human Rights MP Mr Ian Goodenough Chair Parliamentary Sl.111 Parliament House CANBERRA ACT 2600 <human.ri ghts@aph.gov .au> 2016 i 1 DEC Dear Mr G� � gh ().>A.. of 23 November Thank you for the letter Parliamentary Amendment (Exemptions) below.

Joint Committee on Human Rights (Re-identification Offence) 2016.
My response Regulation 2016 in relation to Report sought comment 9 of 2016, in which the on the Privacy Bill 2016 andfthe Sex Discrimination Amendment to the issues raised by the committee is set out Parliament House Canberra ACT 2600 Telephone: (02) 6277 7300 Facsimile: (02) 6273 4102 Sex Discrimination Amendment (Exemptions) Regulation 2016 The committee of a person's sexual right to equality extending effective adequate particularly three-year period.
notes that the exemption orientation, from protections identity and intersex gender The committee and non-discrimination.
for two Western Australian the exemption and proportionate time to review the stated and assess in light of the fact that an exemption in achieving their legislation objective compliance against status requests laws for a further on the basis discrimination the and limits on whether is 12 month period engages advice has already been in place for a previous of allowing states and territories with the new protections, that a further indicated extension of the Human Reproductive 23 of the Human Reproductive Technology Technology persons couples, for the purpose IVF procedures-including Act has the effect of prohibiting Western Australia amendment Section same-sex accessing of the Surrogacy transgender persons born under a surrogacy of intersex arrangement.
and potentially transgender or persons status, of time was required Act (WA) and Surrogacy Act has the effect of prohibiting male to facilitate Act (WA).

the or persons of a surrogacy arrangement.


from Section 19 of intersex status, male same-sex from seeking couples, a parentage order for a child and potentially that a state should The Government does not consider on the basis of their sexual Government acknowledges surrogacy Western Australian Western Australian community orientation, that the regulation continue identity and/or of assisted a matter to discriminate against people However, status.
the intersex technology and reproductive and that the and territories consult additional for reform in this area.
issue that is primarily time to properly government should is a sensitive for states about options be granted gender the The limitation is Western Australia has advised of this exemption the Western Australia after 31 July 2017. proportionate, allowing a sufficient yet not overly lengthy time for to properly consult on options for reform to its legislation The Government government that it does not propose any further extensions I trust this information will assist you in concluding your consideration of this legislation.
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