Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024
11. 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.
12. The Bill promotes the right to safe and healthy work conditions and enhances protections against violence and abuse, by increasing penalties for certain criminal offences in order to deter violence and aggression against Commonwealth frontline workers.
12. To the extent that these amendments may have implications for the rights and freedoms of individuals found guilty of such offences through the criminal justice process, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.
Overview of the Bill
13. The Bill strengthens protections for Commonwealth frontline workers by:
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- inserting and defining the term 'Commonwealth frontline worker' in section 146.1 of the Criminal Code; and
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- extending the higher penalties set out in paragraphs 147.1(1)(f) and 147.2(1)(e) of the Criminal Code for the offences of causing harm or threatening to cause serious harm to a Commonwealth public official, to Commonwealth frontline workers.
14. A Commonwealth frontline worker is defined as a Commonwealth public official who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role.
15. For the avoidance of doubt, the Bill also contains a mechanism to prescribe one or more categories of workers as frontline workers for the purpose of the relevant offences.
Human rights implications
16. The Bill engages directly or indirectly with the following human rights:
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- Article 19(1) and 19(2) of the International Covenant on Civil and Political Rights (ICCPR) – the rights to freedom of opinion and expression,
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- Article 20(2) of the ICCPR – the right to protection against violence and abuse, and
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- Article 7(b) of the ICCPR – the right to safe and healthy working conditions.
The rights to freedom of opinion and expression
17. Article 19(1) of the ICCPR provides that everyone has the right to hold opinions without interference and Article 19(2) provides that everyone has freedom of expression, including the freedom to 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 their choice.
18. The exercise of the rights provided for in this article may be subject to certain restrictions, as set out in Article 19(3) of the ICCPR, including for the respect of the rights or reputations of others or for the protection of public order.
19. The aim of these amendments is to address the increasing risk of harm faced by Commonwealth frontline workers in the course of their day-to-day work, providing essential government services and functions to the public. The amendments are consistent with the rights to freedom of opinion and expression. The amendments do not unduly restrict these rights because the definition of harm in section 146.1 limits the offences in sections 147.1(1) and 147.2(1) to serious forms of harm like physical harm and harm to a person's mental health.
The right to protection against violence and abuse
20. Article 20(2) of the ICCPR prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
21. The Ashton Review found that Commonwealth frontline workers are facing increasingly violent and aggressive behaviour in the workplace in their dealings with the public. These amendments send a strong message to the community that violence and aggression against Commonwealth frontline workers will not be tolerated and serious penalties will apply to such conduct.
The right to safe and healthy working conditions
22. Article 7(b) of the ICCPR recognises that everyone has the right to the enjoyment of just and favourable conditions of work and ensures, in particular, the right to safe and healthy working conditions.
23. The Bill promotes this right by increasing the maximum penalties available to the court when an offender commits harm against or threatens to cause serious harm to a Commonwealth frontline worker. The increased penalties are intended to create a stronger deterrent for such behaviour and highlight the intolerance for such behaviours in the workplace.
Conclusion
24. In summary, the Bill is compatible with human rights because it:
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- aims to actively deter harm, or threats of serious harm, towards Commonwealth frontline workers by increasing the penalty provisions for the relevant offences in the Criminal Code,
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- actively promotes the right to a workplace that is safe and healthy, and
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- does not unduly or impermissibly constrain the rights to freedom of opinion and expression because of the definition of harm contained within the relevant offence provisions.
25. The Bill does not alter or in any way diminish the protections available to an accused in a criminal trial in Australia, including through the presumption of innocence and the right to a fair trial.