Chapter 1
New and continuing matters
1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 9 to 12 November 2015, legislative instruments received from 2
to 29 October 2015, and legislation previously deferred by the committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3 The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following bills and concluded that they
do not raise human rights concerns. The following categorisation is indicative
of the committee's consideration of these bills.
1.7
The committee considers that the following bills do not require
additional comment as they either do not engage human rights or engage rights
(but do not promote or limit rights):
-
Amending Acts 1990 to 1999 Repeal Bill 2015;
-
Automotive Transformation Scheme Amendment (Securing the
Automotive Component Industry) Bill 2015;
-
Export Control Amendment (Quotas) Bill 2015;
-
Migration Legislation Amendment (Cessation of Visa Labels) Bill
2015;
-
Statute Law Revision Bill (No. 3) 2015; and
-
Tax Laws Amendment (Gifts) Bill 2015.
1.8
The committee considers that the following bills do not require
additional comment as they promote human rights or contain justifiable
limitations on human rights (and may include bills that contain both
justifiable limitations on rights and promotion of human rights):
-
Australian Institute of Aboriginal and Torres Strait Islander
Studies Amendment Bill 2015;
-
Treasury Legislation Amendment (Repeal Day 2015) Bill 2015; and
-
Veterans' Entitlements Amendment (Expanded Gold Card Access) Bill
2015.
Instruments not raising human rights concerns
1.9
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[1]
Instruments raising human rights concerns are identified in this chapter.
1.10
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
1.11
The committee has also concluded its examination of the previously
deferred Military Superannuation and Benefits (Eligible Members) Declaration
2015 [F2015L01527] and makes no comment on the instrument.[2]
Deferred bills and instruments
1.12
The committee has deferred its consideration of the following bills and
instruments:
-
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015; and
-
Telecommunications (Interception and Access) Amendment (Public
Interest Advocates and Other Matters) Regulation 2015 [F2015L01658].
1.13
The committee continues to defer its consideration of the Migration
Amendment (Protection and Other Measures) Regulation 2015 [F2015L00542]
(deferred 23 June 2015).[3]
1.14
The committee also continues to defer the Charter of the United Nations
(UN Sanction Enforcement Law) Amendment Declaration 2015 (No. 1) [F2015L01422]
pending a response from the Minister for Foreign Affairs regarding a number of
related instruments.[4]
1.15
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[5]
Response required
1.16
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Omnibus Repeal Day (Spring 2015) Bill 2015
Portfolio:
Prime Minister
Introduced:
House of Representatives, 12 November 2015
Purpose
1.17
The Omnibus Repeal Day (Spring 2015) Bill 2015 (the bill) seeks to make
a number of amendments to a variety of Acts. The bill seeks to repeal redundant
or spent provisions as well as make a number of amendments designed to reduce
regulation.
1.18
Measures raising human rights concerns or issues are set out below.
Background
1.19
The Omnibus Repeal Day (Spring 2014) Bill 2014 (the 2014 bill) sought to
make a number of the amendments that are contained in this bill. The 2014 bill
is currently before the House of Representatives.
1.20
The committee commented on the 2014 bill in its Nineteenth Report of
the 44th Parliament[6]
and its Twenty-second Report of the 44th Parliament.[7]
Removal of consultation requirement when changing disability standards
1.21
Part 2 of Schedule 3 of the bill seeks to repeal a number of provisions
in various Acts relating to consultation requirements, including repealing
subsections 382(1) and (3) of the Telecommunications Act 1997 (the
Telecommunications Act).
1.22
Currently, the Australian Communications and Media Authority (ACMA) can
make a 'disability standard' in relation to equipment used in connection with a
standard telephone service where features of the equipment are designed to
cater for the special needs of persons with disabilities (for example, an
induction loop designed to assist with a hearing aid).[8]
Before making a disability standard, ACMA must try to ensure that interested
persons have an adequate opportunity (of at least 60 days) to make
representations about the proposed standard, and give due consideration to any
representations made.[9]
1.23
By removing these requirements, the committee considers that the measure
engages the right to equality and non-discrimination and the rights of persons
with disabilities.
Right to equality and
non-discrimination (rights of persons with disabilities)
1.24
The rights to equality and non-discrimination are protected by articles
2, 16 and 26 of the International Covenant on Civil and Political Rights
(ICCPR).
1.25
These are fundamental human rights that are essential to the protection and
respect of all human rights. They provide that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
1.26
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or on the basis of disability),[10]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[11]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[12]
1.27
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that state
parties are required to take into account to ensure the right to equality
before the law for people with disabilities, on an equal basis with others.
1.28
Article 4 of the CRPD requires that when legislation and policies are
being developed and implemented that relates to persons with disabilities,
state parties must closely consult with and actively involve persons with
disabilities through their representative organisations.
1.29
Article 9 of the CRPD requires state parties to take appropriate
measures to ensure persons with disabilities have access, on an equal basis
with others, to information and communications technologies and systems.
1.30
Article 21 of the CRPD requires state parties to take all appropriate
measures to ensure persons with disabilities can exercise the right to freedom
of expression and opinion, including the freedom to seek, receive and impart
information and ideas on an equal basis with others.
Compatibility of the measure with
the right to equality and non-discrimination (rights of persons with
disabilities)
1.31
The committee notes that the CRPD describes the specific elements that
state parties are required to take into account to ensure the right to equality
and non-discrimination. In particular, article 4(3) of the CRPD requires that
when legislation and policies are being developed and implemented that relate
to persons with disabilities, state parties must closely consult with and
actively involve persons with disabilities through their representative
organisations.
1.32
In addition, article 9 of the CRPD requires that state parties take
appropriate measures to ensure persons with disabilities have access, on an
equal basis with others, to information and communications technologies and
systems. The United Nations Committee on the Rights of Persons with
Disabilities has noted that access to information and communications technology
(including telephones) is a requirement of the obligation to adopt and monitor
national accessibility standards, and has noted that it 'is important that the
review and adoption of these laws and regulations are carried out in close consultation
with persons with disabilities and their representative organizations (art. 4,
para. 3), as well as all other relevant stakeholders'.[13]
1.33
The obligation to respect the right to equality and non-discrimination
in relation to persons with disabilities includes an obligation to closely
consult when reviewing any regulations that affect accessibility, such as
national disability standards administered by ACMA under the Telecommunications
Act. As the bill seeks to repeal consultation requirements under the
Telecommunications Act, it is necessary to demonstrate that existing
legislation provides for as much, if not more, requirements to consult when any
changes are made to disability standards.
1.34
The statement of compatibility states that the existing provisions of
the Legislative Instruments Act 2003 (LI Act) provide a statutory
mechanism for people to comment on those standards, and that the differences
between the standards in the LI Act and those repealed by this bill are not
significant as they are both framed in terms of 'practicable' consultation.
1.35
However, as the committee noted in its consideration of this matter in
relation to the 2014 bill, the LI Act does not strictly require that
consultation be undertaken before an instrument is made. Rather, it requires
that a rule-maker is satisfied that any consultation, that he or she thinks is
appropriate, is undertaken. In the event that a rule-maker does not think
consultation is appropriate, there is no requirement that consultation be
undertaken. In addition, there are no equivalent process requirements to those
contained in the Telecommunications Act, which provides for at least 60 days
for people to make comments on a proposed standard. In addition, the LI Act
provides that consultation may not be undertaken if a rule‑maker
considers it to be unnecessary or inappropriate; and the fact that consultation
does not occur cannot affect the validity or enforceability of an instrument.
1.36
As the committee previously noted in relation to the 2014 bill, the
consultation requirements under the LI Act are not equivalent to the current
consultation requirements in the Telecommunications Act. Therefore, the repeal
of the consultation requirements in relation to disability standards limits the
right to equality and non-discrimination, in particular, the obligation to
consult under the CRPD.
1.37
A limitation on a right can be justified if the measure seeks to achieve
a legitimate objective and the limitation is rationally connected to, and is a
proportionate way to achieve, its legitimate objective.
1.38
The statement of compatibility does not explain the specific purpose of
this amendment, other than the general statement that the purpose of the bill
as a whole is to 'reduce regulatory burden for business, individuals and the
community sector'.[14]
1.39
The committee notes that to be capable of justifying a proposed
limitation on human rights, a legitimate objective must address a pressing or
substantial concern and not simply seek an outcome regarded as desirable or
convenient. The committee considers that broadly reducing regulatory burden may
not be considered to meet a pressing or substantial concern, such that it would
warrant limiting the obligation to closely consult with, and actively involve,
persons with disabilities when adopting and monitoring national accessibility
standards.
1.40
The statement of compatibility also provides no assessment of the
proportionality of the measure, other than to say that the requirements under
the LI Act will ensure that the views of persons with disabilities continue to
be appropriately considered.
1.41
The committee's assessment of the repeal of consultation
requirements in relation to disability standards against article 26 of the
International Covenant on Civil and Political Rights and the Convention on the
Rights of Persons with Disabilities (right to equality and non-discrimination
and rights of persons with disabilities) raises questions as to whether the
repeal of these requirements is consistent with these rights.
1.42
As set out above, the repeal of consultation requirements engages
and limits the right to equality and non-discrimination and the rights of
persons with disabilities. The statement of compatibility does not sufficiently
justify that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Assistant Minister for Productivity
as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Removal of requirement for independent reviews of Stronger Futures measures
1.43
Items 10 to 16 of part 3 of Schedule 11 of the bill seek to repeal
several provisions in the Stronger Futures in the Northern Territory Act
2012 (SF Act) that currently require certain reviews to be undertaken. Some
of these requirements are now redundant as the reports of the review have now
been tabled. However, the bill also repeals a requirement that there be an
independent review of the first three years of operation of the SF Act, with
the report of the review to be tabled in Parliament. Currently the review
process in section 117 of the SF Act requires an assessment of the
effectiveness of the special measures provided for by the Act and consideration
of any other matter specified by the minister. This review is currently due to
be completed before 16 July 2016.
1.44
As the committee previously noted in relation to similar measures in the
2014 bill, removing the legislated requirement for review of the measures in
the SF Act engages and may limit a number of
human rights, including the following rights:
-
right to equality and non-discrimination;[15]
-
right to social security;[16]
-
right to an adequate standard of living;[17]
and
-
right to a private life.[18]
Compatibility of the measure with
multiple rights
1.45
The statement of compatibility states that the repeal places no limits
on human rights and so is compatible with human rights:
The Australian Government, with the Northern Territory
Government, is currently negotiating a new National Partnership Agreement as a
result of the formal revision of the Stronger Futures NPA. The new National
Partnership Agreement will continue measures underpinned by the SF Act, and
will also include specific review points of the operation of those measures
with an equivalent level of scrutiny. This makes the provisions under section
117 in the SF Act redundant.
Repeal of the review and reporting provisions under section
117 of the SF Act will provide clarity by removing duplicative requirements
from the Commonwealth statute book. It is compatible with human rights, as to
the extent that the SF Act engages human rights the repeal does not place any
limitations on those rights.[19]
1.46
It is not clear to the committee that a legislated review of the
Stronger Futures measures is redundant or duplicative, given the National
Partnership Agreement (NPA) is not yet finalised and will not contain a
legislative requirement to review the measures contained in the SF Act. The
committee does not consider that the proposed review process arising from the
Stronger Futures NPA provides an equivalent review process to the review
currently prescribed by the SF Act. The review provisions in the SF Act specify
that the review must be independent, provides a timeframe in which the review
must be completed, provides frameworks for what must be reviewed and requires
reports of the reviews be tabled in Parliament. In contrast, the potential
review as part of the NPA process is likely to lack any legislated requirement
that the review actually take place or that it will be independent and
transparent. It is also likely to take place at a much later date than the
current deadline of July 2016.
1.47
As previously noted in relation to the 2014 bill, the committee has
previously examined the Stronger Futures measures and considered whether the
limitations imposed on rights were justifiable.[20]
The committee is currently conducting a further inquiry into these measures and
intends to report shortly. As part of its initial examination the committee
took into account the provisions requiring a legislated independent review
process. For example, the committee examined the measures in the SF Act to
address alcohol abuse. It considered that these measures engage and limit a
number of rights, particularly the right to privacy and the right to non‑discrimination.
In making its conclusion on the proportionality of the measures, the committee
relied on the then minister's analysis that the measures would not be continued
after their objective had been achieved and there was to be an independent
review of the operation of the legislation after three years.[21]
The committee noted the importance of continuing close evaluation of such
measures.
1.48
The committee also noted that effective and meaningful consultation with
affected Indigenous communities is an important and necessary requirement for
safeguarding human rights, particularly the right to self-determination.[22]
The committee concluded that this requires involving affected communities in
decisions about whether to adopt measures and in implementing such measures,
and also in their monitoring and evaluation.[23]
1.49
The committee notes that the government has previously stated that the
measures in the SF Act are 'special measures' for the purposes of international
law.[24]
Under international law, if measures are 'special measures' there must be a
process for a full evaluation of whether the measures continue to be necessary
to meet the objective of reducing Indigenous disadvantage.[25]
1.50
The committee considers that the existence of a legislative requirement
for independent review and evaluation of the Stronger Futures measures is
important to questions about justifying limitations on rights, particularly
considering the proportionality of any such limitations. As the committee has
concluded that the SF Act introduces a number of measures that limit multiple
human rights, the committee considers that removing the requirement for
independent review of these measures may affect the proportionality of the
Stronger Futures measures.
1.51
The committee considers that the removal of a legislated
requirement for independent review of the Stronger Futures measures may mean
these measures may not be appropriately evaluated. The committee considers that
repealing the legislated requirement for an independent review of the Stronger
Futures measures may affect the proportionality of any limitations on rights
posed by the Stronger Futures measures and impact on whether such measures can
be considered to justifiably limit human rights.
1.52
The committee notes that it is currently conducting its Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation and
will consider the effect of the removal of the review requirements as part of
that inquiry.
Charter of the United Nations (Sanctions—Iraq) Amendment Regulation 2015
[F2015L01464]
Charter of the United Nations (Sanctions—Syria) Regulation 2015
[F2015L01463]
Charter of the United Nations (UN Sanction Enforcement Law) Amendment
Declaration 2015 (No. 2) [F2015L01673]
Portfolio:
Foreign Affairs
Authorising
legislation: Charter of the United Nations Act 1945
Last day
to disallow: 3 December 2015 (Senate) (or 22 February 2016 (Senate) for the Charter
of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2015
(No. 2) [F2015L01673])
Purpose
1.53
The Charter of the United Nations (Sanctions—Iraq) Amendment
Regulation 2015 and the Charter of the United Nations (Sanctions—Syria)
Regulation 2015 (together the cultural sanctions regulations) seek to give
effect to a resolution of the United Nations Security Council in relation to
the protection of Iraqi and Syrian cultural property.
1.54
The Charter of the United Nations (UN Sanction Enforcement Law)
Amendment Declaration 2015 (No. 2) (the UN Sanction Enforcement Law regulation)
amends the Charter of the United Nations (UN Sanction Enforcement Law)
Declaration 2008, to include contravention of aspects of the cultural sanctions
regulations relating to Syria as a 'UN sanction enforcement law'. The effect of
this is to make breach of those provisions a criminal offence under the Charter
of the United Nations Act 1945 (the Act).
1.55
Measures raising human rights concerns or issues are set out below.
Australia's obligations under the United Nations Charter
1.56
In February 2015, the UN Security Council passed resolution 2199 that
provides:
all Member States shall take appropriate steps to prevent the
trade in Iraqi and Syrian cultural property and other items of archaeological,
historical, cultural, rare scientific, and religious importance illegally
removed from Iraq since 6 August 1990 and from Syria since 15 March 2011,
including by prohibiting cross-border trade in such items, thereby allowing for
their eventual safe return to the Iraqi and Syrian people...[26]
1.57
Under international law, Australia is bound by the Charter of the United
Nations 1945 (UN Charter) to implement UN Security Council decisions.[27]
In addition, Australia's obligations under the UN Charter may expressly override
Australia's obligations under international human rights law.[28]
1.58
However, the terms of UN Security Council resolution 2199 give countries
discretion as to what 'appropriate steps' are to be taken to prevent the trade
in such items. On this basis, the committee considers that UN Security Council
resolution 2199 requires Australia to implement appropriate steps to prevent
the trade in Iraqi and Syrian cultural property that are consistent with
Australia's international obligations including human rights obligations.
Accordingly, the committee is required to assess whether these regulations, in
implementing Australia's obligations under resolution 2199, are consistent with
Australia's international human rights obligations.
Offences of dealing with 'illegally removed cultural property'
1.59
The cultural sanctions regulations provide that anyone who suspects an
item is illegally removed cultural property from Iraq or Syria must notify
either the Secretary of the Department of Foreign Affairs and Trade (DFAT) or
of the Department of Communications and the Arts or a member of the police. If
the Secretary of DFAT reasonably believes that a person has possession or
control of an item that might be illegally removed cultural property, the
Secretary may direct the person to comply with arrangements for storage of the
item as specified by the Secretary.
1.60
An item is defined as 'illegally removed cultural property' if it is
Syrian or Iraqi cultural property, or has archaeological, historical, cultural,
rare scientific, or religious importance, and has been illegally removed from
Syria on or after 15 March 2011 or from Iraq on or after 6 August 1990.
1.61
The cultural sanctions regulations do not specify what happens to an
item once the Secretary of DFAT directs an item to be placed in storage.
However, a legislative note states that the department and police will work
together to determine whether the item is illegally removed cultural property
and, if satisfied that it is, the department will arrange for its eventual
return to Syria or Iraq. None of this detail is substantively set out in the
legislative instruments.
1.62
A person commits an offence of strict liability if they fail to comply
with arrangements specified by the Secretary, liable to up to 50 penalty units.
In addition, as breach of such provisions in relation to Syria have been
designated as a UN sanction enforcement law, a person commits an offence under
the Act by engaging in conduct (including doing an act or omitting to do an
act) that contravenes the provisions. This is then punishable by up to ten
years imprisonment and/or a fine of up to 2500 penalty units (or $450 000).[29]
In contrast, in relation to property removed from Iraq, only the strict
liability penalty of 50 units applies to failing to comply with arrangements
specified by the Secretary.
1.63
However, for both property from Iraq and Syria, there is an additional offence
(specified as a UN sanction enforcement law) for persons who give, trade in or
transfer the title of illegally removed cultural property, otherwise than in
accordance with a direction of the Secretary.[30]
This is also punishable by up to ten years imprisonment and/or a fine of up to
$450 000.
1.64
The committee considers these measures engage and may limit the
prohibition against arbitrary detention, as the offences which could lead to up
to ten years imprisonment, may not have a clear legal basis as they are very vaguely
drafted and imprecise.
Right to liberty (prohibition
against arbitrary detention)
1.65
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to liberty – the procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty. The prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law. The notion of 'arbitrariness'
includes elements of inappropriateness, injustice and lack of predictability.
1.66
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time if
the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non‑arbitrary.
1.67
The right to liberty applies to all forms of deprivations of liberty, including
detention in criminal cases, immigration detention, forced detention in
hospital (such as involuntary admission for psychiatric treatment), detention
for military discipline and detention to control the spread of contagious
diseases.
Compatibility of the measure with
the right to liberty (prohibition against arbitrary detention)
1.68
The statements of compatibility for the cultural sanctions regulations
state that the regulations advance the protection of human rights in Syria and
Iraq as they assist with international efforts to deprive terrorist
organisations from funding human rights violations in Syria and Iraq by trading
in illegally removed cultural property. The statement of compatibility for the
UN Sanction Enforcement Law regulation states that the regulation does not
engage any human rights. There is no further discussion in any of the
statements about any rights that may be limited by the regulations, including
the right not to be arbitrarily detained.
1.69
In assessing whether the regulations engage and may limit the right not
to be arbitrarily detained, the committee notes that arbitrary detention under
international human rights law is much broader than unlawful detention.
Detention that is lawful under Australian law may nevertheless be arbitrary and
thus in breach of Australia's obligations under article 9 of the ICCPR. The UN
Human Rights Committee has explained:
The notion of 'arbitrariness' is not to be equated with
'against the law', but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability, and due process of law.[31]
1.70
In addition, the UN Human Rights Committee has noted that any
substantive grounds for detention 'must be prescribed by law and should be
defined with sufficient precision to avoid overly broad or arbitrary
interpretation or application'.[32]
1.71
This is consistent with the committee' approach to limitations on rights
more generally. As set out in the committee's Guidance Note 1, any limitation
on a right must be prescribed by law. This requires not only that the measure
limiting the right be set out in legislation, but that the law must be precise
enough so that people know the legal consequences of their actions or the
circumstance under which authorities may restrict the exercise of their
rights.
1.72
The provisions of the cultural sanctions regulations set out above at
paragraphs [1.59] to [1.63] appear in a number of respects to lack the required
legal clarity for the purposes of international human rights law. In
particular:
-
The definition of what constitutes 'illegally removed cultural
property' is defined as an item of property that 'has been illegally removed'
from Syria or Iraq after certain dates. It is unclear what constitutes illegal
removal. For example, it could mean illegal under Iraqi or Syrian law at the
time of removal (including, therefore, under laws in force in Iraq during the
regime of Saddam Hussein or in Syria under the Assad regime), or it could mean
illegal under international law or Australian domestic law.
-
It is also unclear if an item would be considered to be
'illegally' removed if the person removing it did so without direct authority
but for the purposes of safe-keeping or with the intent of ensuring the items
were not lost or plundered in the context of a civil war (including in circumstances
where there is no direction in force, or where they are unaware of any such
direction).
-
In addition, there is no definition as to what may be considered
to be 'cultural property' or what may be considered an item of 'archaeological,
historical, cultural, rare scientific, or religious importance'. For example,
what is considered of historical importance may differ between countries and
within countries.
-
A person is required to comply with written directions from the
Secretary 'for storage of the item'. No further detail is specified as to what
these directions may be, nor is there a requirement that the arrangements be
reasonable. Further, no timeframe is provided as to when a person must comply
with such arrangements. It is unclear what would constitute a failure to comply
with arrangements (does partial compliance constitute a failure, for example).
-
Any person who gives, trades in or transfers the title of
illegally removed cultural property, unless it is in accordance with a
direction of the Secretary, is guilty of an offence. This offence has extended
geographical jurisdiction so that the offence can be committed in other
countries where there is a link to Australia; for example that the person is an
Australian citizen.
-
There is no requirement that a direction is in force in relation
to the property before the offence could apply. It is also not clear what fault
element would apply in this instance. The default fault element under the Criminal
Code Act 1995 is intention for conduct (such as intentionally giving
the property) but is recklessness in other instances. It appears a person
could be subject to up to ten years imprisonment for giving property to another
person, and they are reckless as to whether it was illegally removed cultural
property, and regardless of their reasons for so doing.
1.73
Accordingly, there are significant questions as to whether the
limitation on the right to arbitrary detention imposed by the regulations is
sufficiently precise for the purposes of international human rights law.
1.74
If it were considered that the limitation was sufficiently precise it
would be necessary to consider whether the regulations pursue a legitimate
objective. Seeking to deprive terrorist organisations of funding by restricting
the sale of Syrian and Iraqi cultural artefacts is clearly a legitimate
objective for the purposes of human rights law, and is in fact likely to
advance the protection of human rights internationally. The penalties in the
regulations are rationally connected to that legitimate objective as a
substantial prison term may deter individuals in trading in Syrian and Iraqi
cultural artefacts which may fund terrorist activities.
1.75
In terms of proportionality, the questions raised above in relation to
legal precision also go to whether the regulation is the least rights
restrictive method of achieving the stated objective. As set out above, the
regulations could apply to individuals who have no involvement in funding
terrorism directly or indirectly and who in fact seek to protect cultural artefacts
from loss or plunder. Accordingly, it has not been demonstrated that the
measures impose a proportionate limitation on the right not to be arbitrarily
detained.
1.76
The committee's assessment of the offences of dealing with
illegally removed cultural property against article 9 of the International
Covenant on Civil and Political Rights (prohibition on arbitrary detention)
raises questions as to whether the offences as drafted are sufficiently
prescribed and justifiable.
1.77
As set out above, the offences of dealing with illegally removed
cultural property engage and limit the prohibition on arbitrary detention. The
statement of compatibility does not justify that limitation for the purposes of
international human rights law. The committee therefore seeks the advice of the
Minister for Foreign Affairs as to:
-
whether the offence provisions are sufficiently precise to
satisfy the requirement that a measure limiting rights is prescribed by law;
and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, including that there are sufficient
safeguards in place and the measure is no more rights restrictive than
necessary to achieve that objective.
Strict liability offence
1.78
The cultural sanctions regulations both provide that strict liability
applies if a person is directed by the Secretary to comply with specified
arrangements for storage of the item, and the person fails to comply with the
arrangement. The regulations state that a penalty of 50 penalty unit applies.
However, in relation to Syria, read together with the UN Sanction Law
Enforcement regulation, any act contravening this provision is also punishable
by up to ten years imprisonment and/or a fine of up to 2500 penalty units.
1.79
The effect of applying strict liability to an element of an offence
means that no fault element needs to be proven by the prosecution but the
defence of mistake of fact is available to the defendant.
1.80
The imposition of strict liability engages and limits the right to a
fair trial, in particular the right to be presumed innocent.
Right to a fair trial (presumption
of innocence)
1.81
Article 14(2) of the ICCPR provides that everyone charged with a
criminal offence has the right to be presumed innocent until proven guilty.
Generally, consistency with the presumption of innocence requires the
prosecution to prove each element of a criminal offence beyond reasonable
doubt.
1.82
Strict liability offences engage the presumption of innocence because
they allow for the imposition of criminal liability without the need to prove
fault. However, strict liability 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, such offences must
be reasonable, necessary and proportionate to that aim.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
1.83
Strict liability in this instance means that the prosecution does not
have to prove any fault element in a person failing to comply with arrangements
as directed. This is despite there being no detail in legislation as to what
those arrangements might be, how the person might be directed or what the
timeframe is for a failure to comply. The Attorney-General's Department's own A
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers states that strict liability should only be applied to all elements
of an offence if the offence is not punishable by imprisonment and there are
legitimate grounds for penalising persons lacking fault.[33]
It is not clear why it is considered appropriate to impose strict liability in
this instance, and no justification was provided in the statement of
compatibility or other explanatory materials. It is particularly concerning
that contravention of this provision in relation to Syria is deemed to be a UN
sanction enforcement law and subject to up to ten years imprisonment.
1.84
As stated above at paragraph [1.72], the committee agrees that seeking
to deprive terrorist organisations from funding human rights violations in
Syria and Iraq is a legitimate objective for the purposes of international
human rights law. However, it is unclear how making the offence of failing to
comply with directions one of strict liability is rationally connected to that
objective, and whether it is a reasonable and proportionate limitation on the
right to the presumption of innocence.
1.85
The committee's assessment of the strict liability offence against
article 14 of the International Covenant on Civil and Political Rights
(presumption of innocence) raises questions as to whether the strict liability
offence is justifiable.
1.86
As set out above, the strict liability offence engages and limits
the presumption of innocence. The statement of compatibility does not justify
that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Foreign Affairs as to:
-
whether there is a rational connection between the limitation
and the stated objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of the stated objective.
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