Commonwealth of Australia Explanatory Memoranda

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HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017

                          2016-2017




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA


                           SENATE




 HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017




   SUPPLEMENTARY EXPLANATORY MEMORANDUM


     Amendments to be Moved on Behalf of the Government




                 (Circulated by authority of the
  Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENT TO THE HUMAN RIGHTS LEGISLATION AMENDMENT BILL
2017


(Government)


GENERAL OUTLINE

1.      The purpose of this amendment to the Human Rights Legislation Amendment Bill
2017 ('the Bill') is to make it clear that conduct which constitutes harassment or intimidation
for the purposes of subsection 18C(1) is not limited to conduct in the presence of the affected
person.

2.       Although the common cause of harassment or intimidation involves a degree of
physical proximity between the affected person and the person whose conduct is complained
of, that is not necessarily so. For instance, the publication of intimidating or harassing
remarks, or their transmission by social media, may also constitute harassment or
intimidation of a person or group. This amendment is designed to ensure that the broader,
rather than the narrower, meaning of the words 'harass' and 'intimidate' is adopted.

3.     Subject to the statutory guidance contained in subsections 18C(2B), (2C) and (2D),
the words 'harass' and 'intimidate' are intended to be interpreted according to their ordinary
and natural meaning, not by reference to any other statutory definition or formula.

FINANCIAL IMPACT

4.    The amendment will have nil or insignificant financial impact on Commonwealth
Government departments and agencies.




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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Human Rights Legislation Amendment Bill 2017

5.     The amendment to 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

6.      The amendment to insert Item 4A into the Bill will overcome the ordinary meaning of
the term 'harass', to ensure that there is no requirement that there be a relationship or
proximity between a person doing an act and the person or group of persons who are subject
to the act.

Human rights implications

7.     The amendment is designed to overcome the ordinary meaning of 'harass' and does
not engage any of the applicable rights or freedoms. The amendment is compatible with
human rights as it does not raise any human rights issues.




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NOTES ON AMENDMENTS

Amendment 1: Schedule 1, page 3 (after line 25), after item 4

1.      The amendment inserts Item 4A after Item 4 of the Bill.

Item 4A

8.       This item will insert subsections 18C(2C) and 18C(2D). These subsections will clarify
that a statement, comment or remark may harass a person or a group of people even if that
statement, comment or remark is not made in the presence of the person or in the presence of
one or more members of that group respectively.

9.     For the purposes of subsections 18C(2C) and 18C(2D) a comment or remark may
include a single comment or remark. A single word, such as a racial epithet, may be a
comment or remark. For example, a person who yells a racial slur at a person on the street
may be reasonably likely, in all the circumstances, to harass or intimidate that other person.

10.    Subsections 18C(2C) and (2D) provide that the making of a statement, comment or
remark may be done orally, in a document or in any other way. This would encompass, for
example, a television broadcast in which a person makes harassing and intimidating
comments about a particular racial or ethnic group, without mentioning a particular
individual of that group.

11.    A statement, comment or remark may be made electronically, for example, through
publication on the internet or through social media.




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