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Bills requiring further information to determine human rights compatibility

Australian Jobs Bill 2013

Introduced into the House of Representatives on 15 May 2013

Portfolio: Climate Change, Industry and Innovation

Summary of committee view

1.1        The committee seeks further information as to why it is necessary to enable the sharing of protected information with a broad range of bodies if the disclosure may relate to personal information, and what safeguards are in place to ensure any such disclosure is proportionate to achieving that aim.

1.2        The committee also seeks clarification as to a number of provisions that may reverse the burden of proof and how this is compatible with the right to be presumed innocent.

Overview

1.3        This bill seeks to extend, and make more demanding, existing requirements to develop Australian Industry Participation (AIP) arrangements. These will apply to projects involving a capital expenditure of $500 million or more. It also seeks to create a new agency, the Australian Industry Participation Authority, with powers to ensure compliance with the bill and to administer a range of other initiatives aimed at building capability and capacity within local business to win work on major projects.

Compatibility with human rights

1.4        The bill is accompanied by a self-contained detailed statement of compatibility which addresses issues relating to equality and non-discrimination (article 26 of the International Covenant on Civil and Political Rights (ICCPR)); the right to privacy (article 17 of the ICCPR); and the right to be presumed innocent (article 14(2) of the ICCPR).

Right to work

1.5        The committee notes that, in addition to the rights referred to in the statement of compatibility, the bill may also have the effect of promoting the right to work insofar as it seeks to enhance the opportunities for Australian entities to win more supply contracts and thus to generate jobs in Australia. As the UN Committee on Economic, Social and Cultural Rights commented:

The right to work requires formulation and implementation by States parties of an employment policy with a view to 'stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment'.[1]

Equality and non-discrimination

1.6        The statement of compatibility notes that subclauses 35(f) and 39(f) of the bill may raise issues under article 26 of the ICCPR.

1.7        Subclause 35(f) of the bill provides that a major project proponent must, in its AIP plan, state that, until the project is completed, it will take all reasonable steps to ensure that each procurement entity 'will not discriminate against Australian entities in relation to timeframes for responding to requests for bids to supply key goods and services for the project’. Subclause 39(f) makes similar provision in relation to the setting of timeframes for bids to supply key goods or services for the initial operational phase of a project facility.

1.8        These provisions are a response to 'cases where project proponents have made open bid tenders for supply into their major project and set longer timeframes to respond for their overseas or global suppliers and shorter timeframes to respond for the Australian tender process.'[2] Subclauses 35(f) and 39(f) aim to prevent that type of behaviour by ensuring that Australian entities are given equal timeframes to respond to tender bids.

1.9                 The committee accepts that, to the extent that subclauses 35(f) and 39(f) are intended to ensure that both Australian and other entities have equal opportunities to respond to tender bids for major projects, the provisions do not appear to give rise to human rights concerns.

Right not to incriminate oneself

1.10      The bill seeks to confer powers on the Australian Industry Participation Authority to require a person to produce information or documents if the Authority believes on reasonable grounds that the person has information or a document that is relevant to the operation of the legislation.[3] The statement of compatibility notes that this may limit the right not to incriminate oneself under article 14(3)(g) of the ICCPR.[4] However, clause 54 provides that in each case a person is excused from giving information or producing a document if to do so 'might tend to incriminate the individual or expose the individual to a penalty.'[5]

1.11             The committee considers that the bill does not appear to give rise to human rights concerns in relation to the right not to incriminate oneself.

Right to privacy

1.12      The bill includes a provision[6] which makes it an offence for entrusted officials who obtain 'protected information'[7] in the course of their duties to disclose or use that information, where the disclosure or use is not authorised by the bill or done in compliance with a requirement under the law of the Commonwealth or a designated State or Territory law. This clause is followed by a series of provisions[8] which permit the disclosure or use of such information for a wide range of purposes and to a long list of agencies and bodies.

1.13      The statement of compatibility notes that the information that is likely to come to the Authority will be information of a commercial nature, not personal information. It further notes that if there is personal information provided to the Authority incidental to the provision of relevant commercial information, 'the Authority will implement a policy to deal with this type of situation'.[9] It also states that much of the disclosure is limited to disclosure for 'a specific purpose such as the performance of functions or the exercise of certain functions or powers'. However, the committee notes that clause 107 allows disclosure simply if the Authority is satisfied that the information 'will enable or assist' the functions or powers of 14 specified agencies, any corresponding State or Territory government bodies, and any designated state or territory government bodies or designated professional disciplinary bodies. This is extremely broad and the bill does not limit the type of information that may be provided.

1.14             The committee intends to write to the Minister for Climate Change, Industry and Innovation to seek further information as to why it is necessary to enable the sharing of protected information with a broad range of bodies if the disclosure may relate to personal information, and what safeguards are in place to ensure any such disclosure is proportionate to achieving that aim.

Right to be presumed innocent

1.15      The statement of compatibility refers to five provisions in the bill[10] that create criminal offences as containing 'reverse burden provisions that will place an evidential burden on the defendant in relation to an offence of unlawfully disclosing protected information.'

1.16      However, it is not clear that the five provisions as presently drafted[11] would in fact impose a burden of proof on a defendant in relation to any of the element of the offence.

1.17      The statement of compatibility justifies any reversal of the burden of proof as follows:

The justification for shifting the evidentiary burden in the subclauses mentioned is linked to the commercial sensitivity of protected information and the potential for damage if disclosed unlawfully. For example if certain information about commercially sensitive schematics to be procured for a project are provided to the Authority, and these schematics are disclosed unlawfully by a Commonwealth officer, the potential for commercial damage to the proponent could be extremely high. Such a scenario could result in the project being delayed, suspended or cancelled, potentially jeopardising millions of dollars in investment and jobs. It is for this type of reason that the reverse burden provisions are justified and proportionate. The regulatory context of these provisions in the Bill is clear and in cases where there is a breach, it is clearly more practical for the accused to prove a fact rather that for the prosecution to disprove it. [12]

1.18      The committee has on a number of occasions addressed the appropriate framework for justifying the imposition of a legal or evidential burden on a defendant by a criminal provision. For example, in its Seventh Report of 2012 the committee noted:

However, reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, the reverse burden must pursue a legitimate aim and be reasonable, necessary and proportionate to that aim. Human rights case-law has established that relevant factors to consider when determining if a reverse burden provision is justified include whether:

• the penalties are at the lower end of the scale;
• the offences arise in a regulatory context where participants may be expected to know their duties and obligations; and
• the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which  they have ready access.[13]

1.19      While the committee recognises the importance of protecting sensitive commercial information, it is not clear (if these offences do reverse the burden of proof) that this is sufficient justification for a reverse onus provision. Similarly, that it is 'more practical' or easier for the defendant to prove a particular fact than for the prosecution to disprove is not decisive of whether a reverse burden would be justified. It is not clear from the statement of compatibility which facts forming essential elements of the offence might be said to be peculiarly within the defendant’s knowledge. It is also relevant that the penalties for breach of these provisions are not inconsequential, with a penalty of imprisonment for 2 years or 120 penalty units or both.

1.20             The committee intends to write to the Minister for Climate Change, Industry and Innovation to seek clarification on the question of (a) why it is considered that subclauses 102(1), 107(4), 107(6), 111(4) and 111(6) impose a reverse onus on a defendant; and (b) how that could be justified in light of the committee’s comments on the appropriate justification for such reverse onus provisions.

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