Replacement Explanatory Memorandum
(Circulated by authority of the Minister for Communications, the Honourable Michelle Rowland)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Postal Corporation and Other Legislation Amendment Bill 2024
1. This Bill (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 of the Bill
2. The purpose of the Australian Postal Corporation and Other Legislation Amendment Bill 2024 (the Bill) is to amend the Australian Postal Corporation Act 1989 (the Act) to implement a range of measures to ensure the security of incoming international mail in the context of a changing mail and security environment.
3. The Bill contains a range of measures to enhance the existing legislative framework by improving the operation of disclosure provisions, streamlining administrative arrangements required under the framework, and improving arrangements to better deal with the forfeiture, disposal and destruction of postal articles or their contents.
Human rights implications
4. This Bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (the ICCPR), and also referred to in Article 16 of the Convention on the Rights of the Child (the CROC), and Article 22 of the Convention on the Rights of Persons with Disabilities (the CRPD).
5. It also engages the right to the presumption of innocence in Article 14 of the ICCPR.
Disclosure of information and documents
Right to protection against arbitrary or unlawful interference with privacy
6. The Bill limits the right to privacy by expanding the range of permissible circumstances for the use and disclosure of information and documents held by Australia Post. This measure is reasonable, necessary and proportionate because it only allows access to information and documents in relation to a mail article where it is required or permitted by law.
7. Today's postal network is now used to facilitate domestic and international commerce and trade, as well as the importation and exportation of goods to and from Australia, driven by a growing eCommerce sector. For this reason, it is critical that Australia Post and border agencies can efficiently and effectively cooperate and share relevant information with other regulators and government agencies during investigative and regulatory activities.
8. The Bill contains measures to introduce a new exception to the existing disclosure regime to better facilitate information sharing with Commonwealth, State and Territory bodies to assist in the performance of their functions or duties. It will also insert new provisions that will permit secondary disclosures of information and documents between government agencies, under strict parameters to assist in the performance of their functions or duties. Existing exceptions to the prohibition on disclosure will continue to apply.
9. The proposed measures in the Bill ensure that any use or disclosure of information received under this exception must be for the permitted purpose, and is limited to law enforcement and emergency services, and Commonwealth, State or Territory government agencies with specific powers and functions that may overlap with postal services. The Bill will insert provisions to authorise the Minister to prescribe other various persons that may be disclosed to under the regime. Where this power is delegated to the Secretary of the administering department, they are to be implemented in a legislative instrument and would be subject to parliamentary scrutiny.
10. Contravention of the permissible exceptions is an offence punishable on conviction by a maximum of 2 years imprisonment. This strikes an appropriate balance between protecting a person's right to privacy and the prevention of threats to security and unlawful conduct, which may have wider implications for the community.
11. The Bill will not change or increase the type of information which can be requested and disclosed through the operation of the provisions. Australia Post and government agencies at all levels are already required to have established protocols to manage and handle any sensitive and personal data and information.
12. The Bill promotes the right to privacy and also contains measures to streamline provisions in the Act to simplify the existing disclosure regime. The proposed amendments will provide greater clarity on the agencies, and purposes for which, Australia Post is able to share information and documents. This will mitigate the risk of inadvertent disclosure and/or use of personal information, but also ensure that where an urgent disclosure is required, the disclosure can be made quickly and without delay or detriment of the health and safety of a person or the community.
13. The proposed measures will remove the irrelevant concept of 'specially protected' information and documents from the disclosure regime to ensure that information and documents held by Australia Post are appropriately handled, consistent with the Australian Privacy Principles outlined in the Privacy Act 1988 (the Privacy Act).
Opening of mail and examination of an article or its contents
Right to protection against arbitrary or unlawful interference with privacy
14. The Act provides for a general prohibition on the opening and examination of mail articles. The Bill limits the right to privacy by expanding the range of permissible circumstances in which a mail article may be opened and examined by Australia Post and border agencies.
15. The Bill contains measures to create a new exception to this prohibited conduct that would apply if the conduct itself is to either be: permitted by another law of the Commonwealth, or a State or Territory; or performed by a member of the Australian Federal Police or other State and Territory police force or service; or a person prescribed by the Minister in a legislative instrument, under strict parameters to assist in the performance of their functions or duties and allow earlier interception of an article.
16. The Bill also engages the right to privacy by inserting new provisions to authorise the Minister to prescribe other various persons that may examine without opening articles, which is permitted to allow articles to be screened without physically interfering with the cover of the article by technology such as X-ray, metal detector or odour detector.
17. These measures are reasonable, necessary and proportionate because it only allows the opening and examination of mail articles where it is required or permitted by law. Where the Minister has powers to prescribe other persons to open and/examine articles, these powers are to be implemented in a legislative instrument and would be subject to parliamentary scrutiny.
18. The Bill enhances the right to privacy through measures to streamline provisions in the Act to simplify the rules for opening and examination of articles. The proposed amendments will provide greater clarity as to the circumstances when articles may be opened and examined, and their contents checked by law enforcement and border agencies.
19. The exceptions or circumstances in which an article may be opened and examined will not change.
Right to a presumption of innocence until the prosecution proves a charge beyond reasonable doubt
20. The Bill engages, but does not limit, the right to a presumption of innocence under Article 14 of the ICCPR.
21. The Bill creates new exceptions to an existing offence under section 90N. The notes for these provisions state a defendant bears an evidential burden in relation to such matters.
22. An evidential burden requires a defendant to provide evidence that suggests a reasonable possibility that the exception or defence is made out. Once the defendant has met the evidential burden, the prosecution must refute the exception or defence and prove all elements of the offence beyond reasonable doubt. However, the evidential burden may amount to a limitation on the presumption of innocence where a defendant fails to establish an absence of fault to discharge an evidentiary burden of proof.
Conclusion
23. The Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.