Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COMMONWEALTH PLACES AND SERVICES
(FACIAL RECOGNITION) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Bernardi)
COMMONWEALTH PLACES AND SERVICES
(FACIAL RECOGNITION) BILL 2018
OUTLINE
The purpose of the Commonwealth Places and Services (Facial Recognition) Bill 2018 is to
proscribe the wearing of facial coverings in several contexts within Commonwealth places
and Territories, including public places in the Australian Capital Territory and Northern
Territory. The bill provides defences to these provisions for lawful wearing of facial
coverings in prescribed circumstances. The Bill also prohibits wearing of facial coverings
when obtaining Commonwealth social services and as a participant in citizenship ceremonies.
The Bill is to ensure that Australian national security and citizen safety is paramount, to
improve verification of identity, to ensure that Australian values and cultural norms are
accepted and respected, and to uphold the equality of women in Australian society.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This clause provides for the Bill to commence on the day after this Bill receives the
Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed
as is set out in the applicable items in the Schedule and that any other item in a
Schedule has effect according to its terms.
Schedule 1-- Amendments
Criminal Code Act 1995
4. This Schedule establishes new offences of wearing a full facial covering - being a
covering that substantially covers the face sufficiently to conceal the wearer's identity.
Defence provisions provide for lawful excuses for wearing facial coverings. Penalties
are graded for first, second and third and subsequent offending. The intent regarding
children wearing a full facial covering is for the person compelling them to do so - in
most circumstances, their parent or guardian - to be treated as the principal offender.
5. The definition of public place is so framed as to ensure that the wearing of a full
facial covering in a private residence, or during a worship service is not prohibited.
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Schedule 2-- Amendments
Social Security (Administration) Act 1999
6. This Schedule prohibits the wearing of a full facial covering in claiming social
security payments. The intention is to prohibit the wearing of the covering while
attending a Centrelink office. The penalty provisions are framed in the same terms
and with the same intent as the provisions of Schedule 1.
Schedule 3-- Amendments
Australian Citizenship Act 2007
7. This Schedule prohibits the wearing of a full facial covering upon a person who is
participating in a ceremony wherein they receive Australian citizenship. No offence
provision is prescribed, as (subject to limited exceptions to the requirement to make a
pledge of commitment) the person can not receive citizenship while so covered.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Commonwealth Places and Services (Facial Recognition) Bill 2018
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
The purpose of the Commonwealth Places and Services (Facial Recognition) Bill 2018 is to
prescribe certain circumstances within the purview of the Commonwealth where a facial
covering cannot be worn.
Human rights implications
This Bill engages freedom of religion. Article 18 paragraph 3 of the International Covenant
on Civil and Political rights reads:
"Freedom to manifest one's religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health or
morals or the fundamental rights and freedoms of others."
The European Court of Human Rights has upheld the rights of Belgium and France to
legislate in this manner. The Court ruled, inter alia, that Belgium has the sovereign right to
regulate:
"a practice it considered to be incompatible with Belgian society, with social
communication and more generally the establishment of human relations, which were
indispensable for life in society ... essential to ensure the functioning of democratic
society."
The Bill also makes clear that participation in worship services or marriage ceremonies are
exempt from the remit of the Bill.
The Bill engages the freedom of political communication. The Bill makes clear that to the
extent that the Bill is considered to interfere with this freedom, it does not apply.
Conclusion
This Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
Senator Bernardi
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