Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
EXPORT CONTROL AMENDMENT (STREAMLINING ADMINISTRATIVE
PROCESSES) BILL 2022
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
Senator the Hon. Murray Watt)
EXPORT CONTROL AMENDMENT (STREAMLINING ADMINISTRATIVE
PROCESSES) BILL 2022
The purpose of this addendum is to provide additional clarifying material for the Export
Control Amendment (Streamlining Administrative Processes) Bill 2022 (the Bill).
This addendum responds to a request of the Parliamentary Joint Committee on Human Rights
(the Committee) in its Report No. 2 of 2023, dated 8 March 2023. The addendum provides
additional detail to reflect the information provided to the Committee by the Minister for
Agriculture, Fisheries and Forestry on 21 February 2023.
SCHEDULE 1 - INFORMATION MANAGEMENT
Export Control Act 2020
Background
1. At the end of paragraph 13 on page 6 of the Explanatory Memorandum, insert:
The amendments outlined in the Bill align with similar changes to the Biosecurity Act
2015 (the Biosecurity Act) agreed to by the Parliament in passing the Biosecurity
Amendment (Strengthening Biosecurity) Act 2022 in November 2022. The Biosecurity
Act is another key Act regulating the supply chain and administered by the department,
and alignment across these authorisations provides consistency and predictability for
stakeholders. These amendments are also consistent with the way information sharing
regimes are framed in other legislation, for example the Hazardous Waste (Regulation of
Exports and Imports) Act 1989 and the Industrial Chemicals Act 2019.
Item 12 Part 3 of Chapter 11
2. At the end of paragraph 52 on page 11 of the Explanatory Memorandum, insert:
For example, an approved auditor who has collected information in conducting an audit
(which is a function or duty under the Act) may share that information with
administrative staff who are assisting the approved auditor to carry out their function of
providing an audit report.
3. In paragraph 59 on page 12 of the Explanatory Memorandum, after the words 'the
Minister's portfolio.', insert:
This allows for best practice and streamlined information sharing, and by definition limits
the persons to whom disclosure of relevant information is allowed, as there must be a
clear connection between the disclosure and the specific legislative purpose of the
relevant Act. This authorisation would, for example, enable information that is collected
in the course of performing a function under the Act that may be relevant to the
administration of the Biosecurity Act, such as information relating to a pest incursion, to
be efficiently shared for the purposes of managing the incursion under that Act.
4. In paragraph 71 on page 14 of the Explanatory Memorandum, after the words
'enforcement of Australian laws.', insert:
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This would better enable enforcement decisions to be informed by proper investigation of
differing, intersecting issues and information, before an effective enforcement decision
can be made. Under new section 393, where information is proposed to be disclosed to a
State or Territory body or a police force or police service of a State or Territory, an
agreement is required to be in place between the Commonwealth and that body, in which
the relevant body has undertaken not to use or further disclose the information except in
accordance with that agreement. This enhances certainty as to the use and onward
disclosure of the information provided. When entering into an agreement, one of the
matters which is expected to be considered by an entrusted person is whether the entity to
whom the relevant information will be disclosed has appropriate processes in place to
protect that information.
5. At the end of paragraph 76 on page 15 of the Explanatory Memorandum, insert:
When entering into an agreement, it is intended that one of the matters which should be
considered by an entrusted person is whether the individual or entity to whom the relevant
information will be disclosed has appropriate processes in place to protect that
information.
6. At the end of paragraph 94 on page 17 of the Explanatory Memorandum, insert:
It is also intended that, when entering into an agreement, one of the matters which should
be considered by an entrusted person is whether the entity to whom the relevant
information will be disclosed has appropriate processes in place to protect that
information.
7. At the end of paragraph 98 on page 18 of the Explanatory Memorandum, insert:
New section 397D does not limit to whom any such disclosures may be made, as
flexibility under the authorisation is necessary and reasonable in responding to
circumstances in which a severe and immediate threat exists. It is anticipated that this
authorisation will be used rarely, as there is a high threshold that must be met in order to
rely on this authorisation - that is, that there is a severe and immediate threat which either
relates to exports or has the potential to cause harm on a nationally significant scale.
8. At the end of paragraph 99 on page 18 of the Explanatory Memorandum, insert:
As the power is given to the Secretary and cannot be subdelegated below SES level, this
provides a safeguard on the exercise of this power.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Assessment of Compatibility with Human Rights
Prohibition on arbitrary interference with privacy (Article 17 of the ICCPR)
9. On page 62 of the Explanatory Memorandum, after the words "appropriate protections
are in place for any personal information.", insert the following paragraphs:
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The kinds of personal information that may be used and disclosed pursuant to the
proposed authorisations is constrained by the operation of the Act, whereby relevant
information is limited to information collected for the purposes of performing functions
or duties, or exercising powers, under the Act. This may include information used to meet
obligations or requirements under the Act, such as personal information contained in
applications or other submissions under the Act. The types of personal information
collected may include, but is not limited to, an applicant's name; address; business
associates; details of intended export operations; previous convictions; or orders to pay a
pecuniary penalty under relevant legislation.
Relevant information that is also personal information may be used or disclosed to other
Commonwealth entities under new section 391 (disclosures to Commonwealth entities) or
393 (disclosure for the purposes of law enforcement), for example in circumstances
where export information is requested in support of investigating suspected criminal
activity or undertaking surveillance operations. For example, the Australian Federal
Police or Australian Border Force may request personal information from the department
relating to an exporter or export operations, in specific cases concerning a port of export,
or an export vessel that may be under suspicion. These entities may request information
relating to any prior convictions, as well as known business associates or interests.
The Bill contains safeguards to ensure that any limitations on the right to privacy are
reasonable, necessary, and proportionate to meeting the legitimate objective of supporting
the management of the export control framework and for the effective operation and
enforcement of the Act.
10. On page 62 of the Explanatory Memorandum, after the words 'impose specific measures
to', insert 'limit or'.
11. On page 62 of the Explanatory Memorandum, after the words 'policy development or
data analysis', insert ', and to otherwise minimise the amount of personal information
disclosed'.
12. On page 62 of the Explanatory Memorandum, after the words "certain personal
information.", insert the following paragraphs:
Further to the safeguards identified above, there would also be additional protections
located outside of the Bill, which would operate to protect personal information used or
disclosed under the proposed authorisations. For example, an agreement between the
Commonwealth and a State or Territory body may sometimes prohibit the onward
disclosure of information or require that information may only be used for a specific
purpose, while in other situations the agreement may impose limitations on onward use or
disclosure rather than prohibitions. In some circumstances, it may be clear that the
relevant State or Territory legislative framework already sufficiently governs the onward
use and disclosure of the information, making it unnecessary to impose restrictions as part
of the agreement. It would not be possible and practical to impose all these requirements
in the Bill itself because flexibility is required in their application to recognise where
there are appropriate protections and address circumstances where further protection is
warranted.
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Similarly, whether conditions should be placed on the use and onward disclosure of
relevant information, and if so, the specific conditions that are required, need to be
adapted to the particular circumstances of the initial disclosure and are not limited to
specific conditions set out in the Bill. For example, where information is being disclosed
to another Commonwealth officer for the purposes of the Biosecurity Act, the use or
disclosure of that information would be governed by the equivalent information
management provisions in that Act and further conditions would be unnecessary. Further,
disclosures to other Commonwealth entities would be governed by the Privacy Act and
unauthorised disclosure that could cause harm may breach existing offence provisions in
the Criminal Code. Where a disclosure to a person outside the Commonwealth is made,
there may already be arrangements in place, for example, by way of conditions imposed
through an instrument of authorisation made under section 291 of the Act.
In addition, the department maintains robust policies and procedures to protect any
personal information which it holds, as documented in the department's Privacy Policy at
agriculture.gov.au/about/commitment/privacy. As part of these processes, personal
information is held in accordance with the collection and security requirements of the
Australian Privacy Principles, the department's policies and procedures and the
Australian Government Protective Security Policy Framework. Should personal
information held by the department be subject to unauthorised access or disclosure, the
department has procedures in place to assess the incident and mitigate any harm that may
have been caused and considers the incident in accordance with its responsibilities under
the Privacy Act and requirements under the Notifiable Data Breach Scheme to notify the
Office of the Australian Information Commissioner of any potential eligible data
breaches.
Other relevant departmental policies and procedures, which can be implemented on a case
by-case basis, include the following:
• application of additional restrictions, including via protective marking, to limit the
clearance level for access of personal information;
• notifying particular affected parties of a particular disclosure or use, if
appropriate;
• entering into agreements with other parties, which as noted above is required for
certain authorisations, will set out use, handling and storage requirements of
personal information; and
• ensuring the storage of personal information meets best practice protocols and is
in line with Commonwealth record-keeping obligations.
13. This additional material explains why the proposed authorisations are appropriately
justified and the additional safeguards that would operate to protect personal information
that is used or disclosed under such authorisations. This reflects the information provided
to the Committee by the Minister for Agriculture, Fisheries and Forestry on 21 February
2023, and responds to a request of the Committee in its Report No. 2 of 2023.
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