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Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013

Introduced into the House of Representatives on 6 February 2013
Portfolio: Infrastructure and Transport

Summary of committee view

1.1        This bill was introduced on 6 February 2013 into the House of Representatives, and passed both Houses of Parliament on 28 February 2013. As the bill has now progressed through both houses the committee has taken the opportunity to make a number of broader comments on the primary legislation this bill seeks to amend and to look at national cooperative schemes more broadly.

1.2        The committee considers that the technical amendments proposed by the bill do not of themselves give rise directly to human rights concerns.

1.3        However, the committee considers that the amendments relate to provisions in the principal Act which give rise to human rights concerns and which were not the subject of a compatibility assessment by the committee when the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 was introduced into the Parliament.

Overview

1.4        This bill seeks to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to correct a drafting error to substitute the ‘National Regulator’ for ‘the Commonwealth’. This is intended to ensure that the Australian Maritime Safety Authority, as the national regulator, is able to reimburse the states and the Northern Territory with amounts collected for infringement notices (instead of the revenue from the infringement notices being received by the Commonwealth as currently drafted).[1]

Compatibility with human rights

1.5        The bill is accompanied by a brief statement of compatibility which states that the amendments do not engage any human rights and the bill is therefore compatible with human rights.

Review of the principal Act for compatibility with human rights

1.6        The principal Act, the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, was introduced into the Parliament on 24 May 2012. That Act, and the related Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 received royal assent on 12 August 2012.

1.7        The explanatory memorandum to the principal Act noted:

This Bill represents the third and final component of the maritime reform package. As a key component of the National System for commercial vessel safety that will commence on 1 January 2013, this Bill introduces a new National Law for the regulation of domestic commercial vessel safety and establishes a National Marine Safety Regulator (the National Regulator). The policy basis for the National Law derives from the Council of Australian Governments (COAG) Inter-Governmental Agreement (IGA) on Commercial Vessel Safety Reforms, signed on 19 August 2011. The IGA also determined that the Australian Maritime Safety Authority (AMSA) will be the National Regulator.

1.8        The explanatory memorandum also noted:

This Bill has been developed with the State and Territory jurisdictions to implement the decision of COAG on 19 August 2011 to create a single National Law to regulate the safety of all commercial vessel operations in Australian waters and to establish a single National Regulator for commercial vessel safety from 1 January 2013.

Extensive consultation has been undertaken on the development of the Bill with the states and territories, including through the Standing Council on Transport and Infrastructure (SCOTI), the Transport and Infrastructure Senior Officials Committee (TISOC), the Maritime Agencies Forum, the National Marine Safety Committee, seven workshops with jurisdiction officials and numerous discussions and correspondence with State and Territory agency contacts.

1.9        It also noted that there had been extensive consultation with industry.

1.10      The Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 included a statement of compatibility in the explanatory memorandum to the bill[2] which addressed a number of relevant rights issues. However, as the bill was introduced before the committee had commenced its work of examining bills,[3] it did not have the opportunity to comment on the provisions of the bill (which is now the principal Act).

1.11      While the minor amendments proposed by this bill do not give rise to any human rights concerns, the committee considers it appropriate to take this opportunity to review aspects of the principal Act. The committee has taken the view that the introduction of amendments to an Act that has not been the subject of review by the committee may be an appropriate occasion to review the compatibility of the principal Act with human rights. In this regard the committee recalls that one of the functions conferred on it is ‘to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue’, in addition to its functions of examining bills and legislative instruments and any matters referred to it by the Attorney-General.[4]

1.12      In this case the committee considers that the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 gives rise to human rights concerns on two levels: (a) the adequacy of the procedures for ensuring human rights compatibility assessments in the negotiation and adoption of cooperative or uniform national schemes and implementing legislation; and (b) specific provisions of the Act which may encroach on rights and which were not adequately justified in the explanatory memorandum or statement of compatibility.

Ensuring human rights compatibility in the context of national cooperative or uniform scheme

1.13      A number of areas of activity are regulated under national schemes resulting from intergovernmental agreements. The legislative form which these schemes take varies: in some cases the legislation of one jurisdiction is adopted by the legislatures of other jurisdictions; in others, each jurisdiction may commit itself to enacting a uniform law in terms agreed at the intergovernmental level; and there are other variants. Sometimes these arrangements involve the agreement of the parties that changes to the template law will be automatically adopted in the various jurisdictions.

1.14      These types of arrangements give rise to legislative scrutiny concerns, as there may be no formal agreement or procedure in place to ensure that cooperative national schemes and implementing legislation are scrutinised for human rights compatibility during their development and before they are finalised at the intergovernmental level. Following the conclusion of an intergovernmental agreement there may be a very limited, or no, possibility for a legislature which has the function of assessing human rights compatibility to do so at a time when such consideration may influence the final content of the legislation. While it may be assumed that officials from jurisdictions with specific rights scrutiny bodies would raise these issues during negotiations (as may others), it does not appear there is any generally agreed formal requirement that any measures or legislation adopted as a result of intergovernmental agreements comply with human rights.

1.15      In addition, agreed national legislation or subsequent amendments adopted pursuant to the arrangements may not be subject to the regular human rights scrutiny processes of the various legislatures. In any event, by that stage there may be limited opportunities for an individual legislature to amend the terms of the law as applied in its jurisdiction to address human rights concerns, without undermining the object of harmonisation or the terms of the intergovernmental agreement.

1.16      This concern is not a new one: scrutiny committees of various Parliaments drew attention to it some time ago. In 1996, representatives of the scrutiny committees of legislatures throughout Australia explored the issue in depth in a position paper.[5] In the Foreword to that paper the chairs of the ACT and NSW scrutiny committees put the position in these terms:

Effective parliamentary scrutiny has been threatened because of the rise of national schemes of legislation which emerge from such bodies as the Council of Australian Governments (COAG) and various Ministerial Councils. Expressed at its simplest level, such councils agree to uniform legislation, usually in closed session, and then proceed through the participating Ministers to sponsor Bills through individual Parliaments, often with the message that the Bills cannot be amended for fear of destroying their uniform nature.[6]

1.17      This issue has been raised again following the adoption of statutory human rights Acts in the Australian Capital Territory and Victoria, and the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011. The issue has been addressed by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament, which has raised concerns about the extent to which scrutiny of bills under the Victorian Charter of Human Rights and Responsibilities Act 2006 may be limited or effectively excluded in the case of cooperative national schemes.[7]

1.18      In the case of the Intergovernmental Agreement (IGA) which underpins the present bill,[8] it does not appear from the IGA, the Discussion Paper on the subject,[9] or the Report of the Consultation on that paper[10] that the question of compatibility with human rights was an integral part of the design of the legislation. The statement of compatibility states that so far as the criminal offences included in the bill are concerned:

The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney-General‘s Department.[11]

1.19      The committee has previously noted that while compliance with this Guide is good practice, it does not of itself necessarily establish compatibility: ultimately an individual assessment of each provision in its particular context will normally be required in order to reach a conclusion on compatibility.

1.20             The committee considers that the issue of compatibility with human rights should be an integral part of the development of any national scheme. Draft legislation prepared under such schemes should be accompanied by a human rights analysis, both during intergovernmental negotiations and during any public consultations that are undertaken. The committee also considers it appropriate that, where any amendments to a scheme or uniform legislation are adopted by intergovernmental agreement, this be done only after a human rights compatibility analysis has been prepared and considered by decision makers. This is consistent with Australia's obligations under international law. These obligations require the Commonwealth government, as well as the states and territories as part of the federal system, to ensure that obligations under human rights treaties are fulfilled throughout the country and by all levels of government.

1.21             The committee intends to write to the Minister for Infrastructure and Transport, together with the Prime Minister, to request information on whether existing procedures or agreements relating to the negotiation of intergovernmental agreements ensure that compatibility with human rights is an integral and explicit part of the design of such schemes and implementing legislation. To the extent that such procedures or agreements do not currently exist, the committee urges the government to ensure that human rights compatibility is an integral and explicit part of the development of all national cooperative schemes and their implementation.

Specific provisions which give rise to human rights issues

Enforcement powers – right to privacy

1.22      The statement of compatibility to the 2012 bill noted:

Part 6 of the National Law Bill contains provisions on enforcement powers that enable Marine Safety Inspectors (inspectors) appointed by the National Regulator (the Australian Maritime Safety Authority) to detain, board, inspect and search domestic commercial vessels; and gather information and seize things in relation to domestic commercial vessel safety regulation and compliance.

1.23      The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney-General‘s Department.

1.24      The statement of compatibility dealt with a number of enforcement powers that may involve encroachments on the right to privacy (article 17 of the International Covenant on Civil and Political Rights (ICCPR)) and maintained that any limitation on the enjoyment of that right were reasonable and proportionate measures for the pursuit of legitimate objectives.

1.25      The statement of compatibility did not address the issue of the compatibility of a number of strict liability offences created by the bill. However, there is an analysis of these issues elsewhere in the explanatory memorandum.[12]

1.26      The committee recognises that the statement of compatibility in question was prepared before the committee had indicated its requirements for statements of compatibility. As the committee has subsequently indicated in its Practice Note 1, a statement of compatibility should be self-contained, and should include a discussion of issues such as the appropriateness of strict liability offences, the appropriate level of penalties and reverse onus provisions.

1.27      The creation of the various strict liability offences is justified in general terms. The explanatory memorandum also discusses in general terms the appropriateness of the level of penalties and the imposition of burdens of proof on the defendant. None of these issues are discussed with explicit reference to the relevant rights contained in the ICCPR, in particular article 14 (right to a fair hearing). The committee notes that in order for it to carry out an assessment of compatibility with human rights for specific offences, levels of penalties and reverse burden provisions, the statement of compatibility should provide an individualised analysis of each provision in light of the relevant treaty standards.

1.28      In addition to these issues, there are a number of human rights issues to which the Act gives rise which were not addressed in the explanatory memorandum.

Right not to be subject to unlawful or arbitrary interference with one’s reputation/ right to freedom of expression

1.29      Section 158 of the principal Act provides that ‘if a court finds a person (the offender) guilty of an offence against this Law, whether or not the court convicts the offender of the offence’, the court may make an adverse publicity order. The court may make an order either on its own initiative or on the application of the person prosecuting the offence. The order may require the offender:

(a) to take either or both of the following actions within the period specified in the order:

(i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and

(b) to give the National Regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.

1.30      An order may be made in addition to any other penalty imposed or any other action that may be taken in relation to the offence.

1.31      The explanatory memorandum explains the provision as follows:

Adverse publicity orders are part of the suite of compliance and enforcement tools available to the National Regulator. They involve the publication of an offender‘s conviction and other relevant facts (such as the consequences of the offence), to either a specific group of people or to the general public. Adverse publicity can be effective in ensuring compliance with the National Law because corporations generally view their reputation as a valuable asset. This approach to enforcement and compliance has been adopted in several Australian jurisdictions and is a feature of Work Health & Safety Act 2010 (Section 236), the Competition and Consumer Act 2010 (Section 86D) and the Victorian Marine Safety Bill 2010 (Section 173).

1.32      Neither the explanatory memorandum nor the statement of compatibility addresses the human rights issues to which the section gives rise. The section appears to operate both in relation to natural persons and corporate entities, and encroaches on the right of a person not to have his or her reputation unlawfully or arbitrarily interfered with, which is guaranteed under article 17 of the ICCPR. The reference to the existence of similar provisions in existing legislation is not determinative of compatibility; the purpose of the Human Rights (Parliamentary Scrutiny) Act 2011 is to ensure that established practices are reviewed in the light of applicable human rights standards.

1.33      In addition, it cannot be assumed that if a provision is compatible with human rights in the context of one piece of legislation, a substantially similar provision will necessarily be compatible in another statutory context. Where a statutory provision imposes a limit on the enjoyment of a human right, the permissibility of that limitation (its rational connection to the goal, reasonableness and proportionality) must be assessed in the context of the specific purpose of the legislation concerned and the context in which it operates.[13]

1.34      The requirement that the offender publicise the fact of their being found guilty or convicted of an offence also engages the right of a person to freedom of expression guaranteed by article 19 of the ICCPR. This right includes the freedom not to speak and to protection against from being compelled by a public authority to make particular statements.

1.35      In order to justify limitations on the enjoyment of the rights guaranteed by articles 17 and article 19, it is necessary for the government to clearly identify a legitimate objective for which the measures are being adopted and demonstrate that it is a necessary and proportionate means of achieving it. This also requires considering less restrictive alternatives, and should include reference to whether less restrictive alternatives were considered and why they were not adopted.

1.36             The committee intends to write to the Minister to seek clarification on the question of whether the power to make adverse publicity orders conferred by section 158 of the Marine Safety (Domestic Commercial Vessels) Act 2012 is consistent with the right not to have one’s reputation subject to unlawful attack as guaranteed by article 17 of the ICCPR and freedom of expression guaranteed by article 19(2) of the ICCPR.

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