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Parliamentary Service Amendment Bill 2012

Introduced into the Senate on 28 November 2012
By: President of the Senate

Committee view

1.1        The committee seeks further clarification from the President of the Senate as to the drafting of new sections 65AC(3) and 65AD(3) and the impact on the right not to incriminate oneself before forming a view as to the compatibility of these provisions with article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR).

1.2        The committee seeks clarification as to whether the protection against retrospective offences in article 15 of the ICCPR applies to new section 15A and seeks further information in relation to the disclosure of sensitive information that raise concerns under article 14 of the ICCPR.

Overview

1.3        This bill amends the Parliamentary Service Act 1999 to reflect proposed changes to the Public Service Act 1999 contained in the Public Service Amendment Bill 2012. Among other things, the bill:

• strengthens the Values and Code of Conduct and establishes Employment Principles for the Parliamentary Service;
• establishes procedures for making and dealing with a whistleblower report in the Australian Parliamentary Service;
• clarifies when reviews of action may be undertaken by the Parliamentary Service Merit Protection Commissioner (the MPC);
• expands the roles and responsibilities of a Secretary in the Parliamentary Service;
• broadens the provisions for the use of 'confidential information' by the Parliamentary Service Commissioner and the MPC, and provide protections for a Secretary or Parliamentary Service employee who provides information to the Commissioner or the MPC; and
• moves the provisions relating to immunity from suit from delegated legislation to the Act;

Compatibility with human rights

1.4        The bill is accompanied by a self-contained and detailed statement of compatibility that addresses a number of human rights issues, including rights the bill promotes as well as rights on which it may encroach. 

Right not to incriminate oneself

1.5        The proposed new section 65AC(3) provides for certain protections where a person has provided information or documents to the Commissioner at the request of the Commissioner. New section 65AD(3) makes similar provision in relation to documents provided to the Merit Review Commissioner. The statement of compatibility states that neither of the provisions is intended ‘to abrogate the privilege against self-incrimination (including in relation to the actual document given or produced).[1]

1.6        As presently worded, those draft provisions provide that neither the giving of the information nor the production of the document is admissible in evidence against the person in proceedings (other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act).

1.7        It is not clear from this wording whether the effect of proposed new sections 65AC(3) and 65AD(3) is to provide protection against proceedings based on the content of any information or document provided, or only based the fact of giving the information or the production of the document. It appears from the statement of compatibility that the broader protection was intended. Further, it appears that the protection against any encroachment on the right not to incriminate oneself[2] is limited here to use immunity; there is no provision for derivative use immunity. This approach may be compared with the approach taken in other bills currently being considered by the committee.^[3]

1.8                 The committee intends to write to the President to:

(a) seek clarification as to the intended effect of new sections 65AC(3) and 65AD(3) on the right not to incriminate oneself;

(b) suggest that the wording be amended to ensure that the broader protection apparently intended is clear from the wording of the statute; and

(c) recommend that consideration be given to the provision of not just use immunity but also derivative use immunity.

Retrospectivity

1.9        The statement of compatibility draws attention to the fact that proposed section 15A(2) raises issues of retrospectivity. The proposed subsection makes it possible for a public service employee to be subject to sanctions under the procedures for actions which did not explicitly form part of the Code of Conduct at the time they were committed (namely before the commencement of the proposed legislative amendments contained in this bill). These actions are knowingly providing false or misleading information to certain persons, wilfully disclosing information that the person knew or ought to have known was relevant or otherwise failing to act with honesty and integrity in connection with the person’s employment.

1.10      The statement notes that:

the sanctions available are administrative (termination of employment, reduction in classification, re-assignment of duties, reduction in salary, deductions from salary (by way of fine) and reprimand), the provision does not strictly engage Article 15. However, noting that termination of employment and other available sanctions can be significant, further explanation of the rationale for the provision is warranted.[4]

1.11      The statement of compatibility provides a justification for the retrospective operation in this case by reference to the important goal pursued and the seriousness of the conduct involved:

The retrospective element in proposed subsection 15(2A) is necessary in light of the serious nature of the proscribed conduct. It is imperative that Senators, Members and the public have confidence in the way Parliamentary Service employees carry out their duties, and the standards of conduct expected of a Parliamentary Service employee are high. Given this, it is appropriate that the provision operate retrospectively to apply to existing Parliamentary Service employees who may have acted dishonestly or without integrity. This provision is consistent with changes made to the framework for the Australian Public Service in the PS Bill.[5]

1.12      However, the statement also notes that the protection against retrospectivity in article 15 of the International Covenant on Civil and Political Rights (ICCPR) applies only ‘to laws imposing criminal liability or punishments’ and ‘does not apply to non-criminal sanctions, such as financial penalties not resulting in a criminal conviction imposed by a court in a civil case.’[6] It notes that ‘the sanctions available are administrative (termination of employment, reduction in classification, re-assignment of duties, reduction in salary, deductions from salary (by way of fine) and reprimand), the provision does not strictly engage Article 15. However, noting that termination of employment and other available sanctions can be significant, further explanation of the rationale for the provision is warranted.’

1.13      The committee has previously noted that the international human rights protections available in relation to ‘criminal’ charges and penalties extend to charges and penalties classified as criminal under Australian law, but are not confined to those. Thus, the fact that a sanction imposed on a person in relation to a particular act is merely a financial one, or a ‘civil penalty, is not determinative of whether that liability of sanction is ‘criminal’ for the purposes of the ICCPR. If the imposition of sanctions of the sort described for the conduct in question were characterised as ‘criminal’ for the purposes of article 15 of the ICCPR, then the imposition of such sanctions retrospectively would be inconsistent with article 15. It may in any case be possible to proceed against the person under similar, more general provisions relating to appropriate standards of conduct which were applicable at the time of the conduct in question.

1.14             The committee intends to write to the President to seek clarification as to why the sanctions in question should not be characterised as a ‘criminal’ for the purposes of article 15 of the ICCPR.

Right to a fair trial

1.15      The bill provides that a person who is, or was, an ‘entrusted person’ cannot be compelled in a court proceeding, or other type of hearing authorised by Commonwealth or State or Territory law, to disclose protected information that was obtained in connection with the performance of certain functions or duties under the Act.[7]

1.16      These are essentially secrecy provisions, and as such, raise concerns with respect to the right to a fair trial in article 14 of the ICCPR. As the statement of compatibility explains, ‘the right to a fair trial is aimed at ensuring the proper administration of justice by upholding, among other things, the right to a fair hearing. This includes a reasonable opportunity for both parties to present their cases, including the presentation of evidence.’[8]

1.17      While it is clearly important to place limitations on the disclosure of sensitive information obtained in the context of exercising the functions and powers within the bill, this must be balanced against the right of a party to a civil or criminal proceeding to access this information where appropriate. The statement of compatibility acknowledges that:

These provisions therefore may, in very limited circumstances, constrain a litigant's ability to adduce relevant evidence in a matter before a court. However, it is considered that such instances would be very rare and that it is important to have a framework in place to protect the disclosure of this sensitive information.[9]

1.18             The committee intends to write to the President to seek clarification as to:

(a) why it is considered that the information warrants protection in preference to a litigant’s right to be able to adduce relevant evidence, given that it could impact on the equality of arms; and

(b) whether it would be preferable to adopt a framework for protecting sensitive information that provides the court with the discretion to decide how and when protected information should be put into evidence (perhaps subject to some directions), rather than vesting that decision in the executive. 

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