Chapter 2 - Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Defence Trade Controls Amendment Bill
2015
Portfolio:
Defence
Introduced:
House of Representatives, 26 February 2015
Purpose
2.3
The Defence Trade Controls Amendment Bill 2015 (the bill) seeks to amend
the Defence Trade Controls Act 2012 (the Act) to:
-
delay the commencement of offence provisions by 12 months to
ensure that stakeholders have sufficient time to implement appropriate
compliance and licensing measures;
-
provide for new offences or amend existing offences relating to
export controls;
-
require approvals only for sensitive military publications and
remove controls on dual-use publications;
-
require permits only for brokering of sensitive military items
and remove controls on most dual-use brokering, subject to international
obligations and national security interests; and
-
provide for review of the Act, initially two years after the
commencement of section 10, and for the minister to table a copy of the review
report in each House of Parliament.
2.4
Measures raising human rights concerns or issues are set out below.
Background
2.5
The committee previously considered the bill in its Twentieth Report
of the 44th Parliament, and requested further information from
the Minister for Defence as to whether the reverse evidential burdens contained
within the bill were a proportionate limitation on the right to a fair trial
(presumption of innocence).[1]
2.6
The bill finally passed both Houses of Parliament on 18 March 2015, and
received Royal Assent on 2 April 2015.
2.7
The committee then considered the Minister for Defence's response in its
Twenty-third Report of the 44th Parliament, and requested further
information as to why it is necessary and proportionate to reverse the burden
of proof in a number of cases.[2]
Reverse evidential burdens
2.8
The bill amended a number of existing offences to introduce statutory
exceptions to those offences. These exceptions reverse the onus of proof and
place an evidential burden on the defendant to establish (prove) that the
statutory exception applies in a particular case.
2.9
The committee previously considered that reversing the burden of proof
engages and limits the right to be presumed innocent.
Right to a fair trial (presumption
of innocence)
2.10
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) protects the right to be presumed innocent until proven guilty
according to law. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt.
2.11
An offence provision which requires the defendant to carry an evidential
or legal burden of proof with regard to the existence of some fact will engage
the presumption of innocence because a defendant's failure to discharge the
burden of proof may permit their conviction despite reasonable doubt as to
their guilt.
2.12
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, such provisions
must be reasonable, necessary and proportionate to that aim.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
2.13
The statement of compatibility notes that the bill limits the right to
be presumed innocent.[3]
2.14
In its previous analysis the committee accepted that the offences in the
Act and the amendments in the bill seek to achieve the legitimate objective of
enhancing the export control regime which supports Australia's defence,
security and international obligations. However, it noted concerns that not all
of the reverse burden provisions may be proportionate to achieving that
objective.
2.15
The committee also noted that while some aspects of the exceptions
appear to be properly characterised as falling within the particular knowledge
of the defendant, it is not clear that it is reasonable to impose an evidential
burden on the defendant in relation to all of the matters specified in the
proposed new defences.
2.16 The minister's response did not justify the limitation for all of the
specified matters. In particular, the committee considered that the minister
had not addressed how the following matters would be particularly within the
knowledge of the defendant, to such an extent, as to make it reasonable in all
the circumstances to reverse the burden of proof. The committee considered that
these matters would appear more likely to be within the government's particular
knowledge and expertise:
-
that the supply is within the scope of Part 2 of the Defence and
Strategic Goods List, which is a list formulated by the minister;[4]
-
that there is no notice in force in relation to the supplier and
the technology;[5]
-
that a country is a participating state for the purposes of the
Wassenaar Arrangement; a participant in the Australia Group; a partner in the
Missile Technology Control Regime; and a participant in the Nuclear Suppliers
Group;[6]
-
that a country is specified in a legislative instrument;[7]
and
-
that the supply is made under or in connection with a contract
specified in a legislative instrument.[8]
2.17 In addition, the committee considered that reversing the burden of proof
in the following instances would appear to require the defendant to prove an
element of the offence, which should more properly fall on the prosecution:
-
proving that the supply of DGSL technology is not the provision
of access to that technology;[9]
and
-
proving that the supply is not for a military end-use nor for use
in a Weapons of Mass Destruction Program.[10]
2.18
The minister's response did not deal with the specifics of the
exceptions and therefore did not provide specific information to support a
conclusion that they are justified. Instead the response dealt with the offence
provision more generally and reiterated how a reverse burden offence works in
practice. The committee also noted the minister's comment regarding a defendant
having a responsibility to satisfy themselves that their activity falls within
an exception. While this may appear reasonable in itself, it doesn't address
why the requirement to undertake due diligence is sufficient to warrant
reversing the burden of proof and it doesn't support a conclusion that such
matters are within the particular knowledge of the defendant.
2.19
Accordingly, the committee sought further information from the Minister
for Defence as to why it is necessary and proportionate to reverse the burden
of proof in the cases outlined at paragraphs [2.16] to [2.17] above.
Minister's response
For the new exceptions that have been included in the Bill,
as the Committee notes, there are key elements of the exceptions that are
solely within a defendant's knowledge. For the other elements of the exceptions
listed in paragraphs 1.36 and 1.37 of the Report, although I concede that these
elements may sometimes be within the Government's knowledge, they would
definitely be within a defendant's knowledge after the defendant has
ascertained, through their own compliance checks, whether the exception applies
to their activity. Given the defendant's lower evidentiary burden of only
needing to produce evidence that suggests a reasonable possibility that the
exception applies, it would not be burdensome or unreasonable for the defendant
to prove these elements with the information collected from their compliance
checks.
These reversals are warranted and proportionate, considering
the importance of the Bill's objective to strengthen national security by
stopping proliferation-sensitive goods and technologies being used in
conventional, chemical, biological or nuclear weapons programs. Suppliers,
publishers and brokers of these goods and technologies must ensure that their
activity falls within the relevant offence exception if they decide to proceed
without a permit under the legislation. It is reasonable to expect that if the
defendant has not undertaken appropriate compliance checks to establish whether
the exception applies and does not possess the evidence to establish the
exception, they may not be able to rely on the exception.
Although I consider that it is reasonable to reverse the
burden for all elements of the relevant exceptions listed in paragraphs 1.36
and 1.37 of the Committee's Report, I have noted its concerns and, accordingly,
will ensure that they are considered during the first review of the legislation
conducted pursuant to section 74B.[11]
Committee response
2.20 The committee thanks the Minister for Defence for his response, and welcomes
his advice that certain elements of the relevant exceptions will be considered
during the first review of the legislation.
2.21
However, the committee reiterates that the reversal of the burden of
proof in relation to the specified exceptions at [2.16] to [2.17] does not
appear to be proportionate to the objective being sought to be achieved. Where
the government seeks to limit the presumption of innocence it is incumbent on
it to demonstrate why such a limitation is justified.
2.22
The committee notes that the minister has conceded that some of the
elements to be initially proved by the defendant would sometimes be in the
government's knowledge. The minister also notes that these elements would be in
'a defendant's knowledge after the defendant has ascertained, through their own
compliance checks, whether the exception applies to their activity.' The
ability of a defendant to undertake compliance checks to determine the
lawfulness of their actions does not seem a reasonable basis on which to
reverse the burden of proof and would result, if applied more broadly, on
reverse burdens being the norm rather than an exception.
2.23
Moreover, the reason given for reversing the burden of proof is that it
would not be burdensome or unreasonable for the defendant to prove these
elements. This does not address the committee's concerns that any reversal of
the burden of proof must be proportionate to the objective sought to be
achieved, including that there are not any other less rights restrictive ways
to achieve the same aim. In this case the less rights restrictive approach
would be to not reverse the burden of proof except in situations where the
circumstances are peculiarly within the knowledge of the defendant and it would
be significantly more difficult and costly for the prosecution to disprove than
for the defendant to establish the matter.
2.24 The committee therefore considers that the measures reversing the
burden of proof in relation to the proposed new statutory exceptions (defences)
limit the right to be presumed innocent. As set out above, the minister's
response does not sufficiently justify that limitation for the purposes of
international human rights law, in particular that it is proportionate to
reverse the burden of proof in relation to all elements of the defence.
Accordingly, the committee considers that the offence provision is likely to be
incompatible with the right to be presumed innocent.
Federal Circuit Court (Commonwealth
Tenancy Disputes) Instrument 2015 [F2015L00265]
Portfolio:
Attorney-General
Authorising
legislation: Federal Circuit Court
of Australia Act 1999
Last day to
disallow: 22 June 2015
Purpose
2.25
The Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument
2015 (the instrument) requires the Federal Circuit Court (FCC) to apply, with
modifications, applicable New South Wales (NSW) law when determining
Commonwealth tenancy disputes that involve land within NSW.
2.26
Measures raising human rights concerns or issues are set out below.
Background
2.27
The committee considered the Federal Courts Legislation Amendment Bill
2014 (the bill) in its Eighteenth Report of the 44th Parliament.[12]
The bill sought to amend the Federal Court of Australia Act 1976 and the
Federal Circuit Court of Australia Act 1999 to confer jurisdiction on
the Federal Circuit Court of Australia (FCC) in relation to certain tenancy
disputes to which the Commonwealth is a party. For example, such a dispute may
arise in the case of public or government housing where the lessor is the
Commonwealth government. The committee raised concerns in relation to the
conferral of jurisdiction on the Federal Circuit Court for certain tenancy
disputes, and requested further information from the Attorney-General as to
whether this conferral is compatible with fair hearing rights.
2.28
The committee considered the Attorney-General's response in its Nineteenth
Report of the 44th Parliament.[13]
In his response to the committee, the Attorney-General stated that '...state and
territory law will continue to govern tenancy arrangements where the Commonwealth
is a lessor. This includes protection about unlawful and unjust eviction'.[14]
However, the instrument makes a number of amendments to state and territory law
applicable to such disputes.
2.29
The bill finally passed both Houses of Parliament and received Royal
Assent on 25 February 2015 as the Federal Courts Legislation Amendment Act
2015 (the Act).
2.30
The committee previously considered the instrument in its Twenty-second
Report of the 44th Parliament (previous report), and requested
further information from the Attorney-General as to whether the instrument was
compatible with Australia's international human rights obligations.[15]
Power of the FCC to dictate vacation date of tenant
2.31 As outlined, the instrument requires the FCC to apply NSW law (namely
the Residential Tenancies Act 2010 (NSW) (the NSW Residential Tenancies
Act), the Residential Tenancies Regulation 2010, and the Sheriff Act 2005
(NSW) (the Sheriff Act)) when determining Commonwealth tenancy disputes
involving land within NSW. The instrument makes a number of modifications to
the application of these laws, including subsection 8(2) which allows the FCC
to dictate the date of vacant possession for tenants who have received a
termination order. This differs from section 94(4) of the NSW Residential
Tenancies Act which provides that long-term tenants must not be ordered to
vacate premises earlier than 90 days after a termination order is made. As a
result of this modification to the NSW law, this could result in tenants being
given a date to vacate premises of less than 90 days.
2.32
The committee considers that the instrument engages and may limit the
right to an adequate standard of living (housing).
Right to an adequate standard of
living
2.33
The right to an adequate standard of living is guaranteed by article
11(1) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR), and requires state parties to take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia.
2.34
Australia has two types of obligations in relation to this right. It has
immediate obligations to satisfy certain minimum aspects of the right; not to
unjustifiably take any backwards steps that might affect living standards; and
to ensure the right is made available in a non-discriminatory way. It also has
an obligation to take reasonable measures within its available resources to
progressively secure broader enjoyment of the right to an adequate standard of
living.
Compatibility of the measure with
the right to an adequate standard of living
2.35
The explanatory statement for the regulation acknowledges that the instrument
engages the right to an adequate standard of living in relation to housing, but
states that it does not limit the right.[16]
2.36
However, in its previous report the committee considered that the
explanatory statement had failed to set out how amending existing NSW law which
would allow the FCC to exercise discretion in determining a vacation date seeks
to achieve a legitimate objective. In particular, there is no justification
provided as to why the existing provisions of the NSW Residential Tenancies Act
as detailed above at [2.31] would be inappropriate or ineffective when determining
Commonwealth tenancy disputes. The committee therefore considered that the
limitation had not been justified.
2.37
The committee therefore sought the advice of the Attorney-General as to
whether the proposed changes are 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.
Attorney-General's response
The Committee has sought further advice regarding the Court's
ability to determine dates for tenants to vacate premises in relation to
Commonwealth tenancy disputes in New South Wales (NSW). This engages the right
to an adequate standard of living.
As the Committee points out, the Instrument applies the Residential
Tenancies Act 2010 (NSW), with some modifications, so that the Court can
exercise jurisdiction in these matters. In particular, subsection 94(4) of the
Residential Tenancies Act is modified in relation to long-term tenants to
remove the minimum guaranteed 90 days to vacate premises after a termination
order is made.
Unlike other residential tenancies in NSW, a long term tenant
is provided greater rights, whereby the landlord may not issue a termination
notice alone to effect termination of the leasing arrangement. A landlord must
seek a termination order from the Court instead. In this way, it ensures that
due process is required to be followed through the Court with the opportunity
for a tenant to be heard.
The Court has been given the discretion to take all factors
into account in determining a matter. Enabling the Court to take into account
all relevant factors provides equity to both parties. The Committee has pointed
out that this could result in an order being made for less than 90 days.
Equally, the Court could order 90 days or more for vacant possession to occur.
Ultimately, the Court has the discretion to decide what is reasonable and
proportionate on a case by case basis in relation to an application to seek
vacant possession of land.
For example, tenants may be informed on an ongoing basis,
months in advance, that termination of their tenancy will occur and vacant
possession sought by a certain date. Other relevant factors that could be taken
into account may include length of tenancy, size of the property, ability to
relocate in a given timeframe, reason for vacant possession being sought or
similar reasons.[17]
Committee response
2.38 The committee thanks the Attorney-General for his response.
2.39
The committee notes that it previously concluded that the Federal
Courts Legislation Amendment Act 2015 was compatible with human rights on
the basis of advice from the Attorney-General that the applicable state and
territory law would continue to govern tenancy arrangements where the
Commonwealth is a lessor.
2.40
The committee also notes that the Attorney-General's response sets out
the rights that are provided to long-term tenants in NSW, including the
obligation on landlords to obtain a termination order from the Federal Circuit
Court before effecting termination of leasing arrangements and that the court will
take into account a number of factors including the length of tenancy and
ability to relocate.
2.41 The committee considers that the power of the Federal Circuit Court
to dictate the vacation date of a long-term tenant engages and limits rights to
adequate standards of housing. However, noting the Attorney-General's advice
regarding factors that will be taken into account during the court process, the
committee considers that the measure may be compatible with the right to an
adequate standard of living (housing).
Powers when executing orders made by the Court
2.42
Section 10 of the instrument grants the Sheriff and Deputy Sheriff of
the FCC any of the powers prescribed under section 7A of the Sheriff Act, including
use of force powers, when enforcing a warrant for the possession of residential
premises owned by the Commonwealth involving land in NSW.
2.43
The committee considers that the instrument engages and may limit the
right to security of the person.
Right to security of the person
2.44
Article 9(1) of the International Covenant on Civil and Political Rights
(ICCPR) provides for the right to security of the person and requires the state
to take steps to protect people against interference with personal integrity by
others. This includes protecting people who are subject to death threats,
assassination attempts, harassment and intimidation (including providing protection
for people from domestic violence).
Compatibility of the measure with
the right to security of the person
2.45
The committee considered in its previous report that empowering the
Sheriff and the Deputy Sheriff to use force against a person in exercising a writ
or warrant engages and limits the right to security of the person, as levels of
force could be used that restrict or interfere with their personal integrity. However,
a measure that limits the right to security of the person may be justifiable if
it is demonstrated that it addresses a legitimate objective, is rationally
connected to that objective and is a proportionate means of achieving that
objective.
2.46
The explanatory statement acknowledges that the instrument engages and
limits the right to security of the person. It also sets out that 'section 10
of the Instrument is aimed at the legitimate and lawful objective of executing
a warrant for possession of Commonwealth property in NSW where the FCC finds
that the Commonwealth is entitled to possession of the premises'.[18]
The committee accepts that the lawful execution of a warrant is a legitimate
objective for the purposes of international human rights law, and that the
measures are rationally connected to that objective. However, it is unclear, on
the basis of the information provided in the statement of compatibility,
whether the measure may be regarded as proportionate to this objective (that
is, the least rights restrictive alternative to achieve this result).
2.47
The explanatory statement points to a range of safeguards to support its
conclusion that the proposed measures are proportionate to their stated
objective.[19]
2.48
It is likely, however, that despite these safeguards there could remain
potential issues of proportionality in relation to the measures, and the
committee considered in its previous report that further safeguards could have
been put in place. These could include, for example, requirements that:
-
the use of force only be used as a last resort;
-
force should be used only if the purpose sought to be achieved
cannot be achieved in a manner not requiring the use of force;
-
the infliction of injury is to be avoided if possible; and
-
the use of force be limited to situations where the officer
cannot otherwise protect him or herself or others from harm.
2.49
The committee therefore considered that the instrument engages and
limits the right to security of the person. The explanatory statement for the
instrument does not provide sufficient information to establish that the
instrument may be regarded as proportionate to its stated objective (that is,
the least rights restrictive alternative to achieve this result). The committee
therefore sought the advice of the Attorney-General as to whether the
instrument imposes a proportionate limitation on the right to security of the
person.
Attorney-General's response
The Committee has also sought further advice about the
proportionality of powers granted to the Sheriff and Deputy Sheriff of the
Court to execute orders made by the Court in relation to Commonwealth tenancy
disputes. This engages the right to security of the person.
The object of the measures in section 10 of the Instrument is
to enable the lawful execution of a warrant for possession as is permitted
under NSW tenancy law. A number of safeguards have been built into the
Instrument which clarifies the extent of a proportional response, should
circumstances require it, on top of the basic powers set out in section 7A of
the Sheriff Act 2005 (NSW). The Committee has noted that despite these
requirements, further safeguards should be put in place.
Sheriffs are responsible for the service and execution of all
process of the Federal Circuit Court of Australia, as directed by the Sheriff
(section 106, Federal Circuit Court of Australia Act 1999). While
the Federal Circuit Court of Australia Act provides for Federal Circuit Court
Sheriffs to execute Enforcement Orders, I understand that in practice
Enforcement Orders would be executed by NSW Sheriffs Officers. NSW Sheriffs
Officers are trained in use of force and must comply with NSW law including the
Sheriff Act. Sheriffs Officers are subject to probation, internal and external
training, on the job training and completion of a Certificate IV in Government
(Court Compliance).
The Sheriff Act empowers a Sheriffs Officer to use such force
as is reasonably necessary to enforce the writ or warrant for possession of
land. Reasonable force is a well-established concept of law, with the
principles set out in Fontin v Katapodis (1962) 108 CLR 177. Reasonable
force is to mean that degree of force which is fair, proper, and reasonably
necessary in the circumstances. Reasonableness generally means that the action
taken was not excessive or disproportionate in the circumstances while necessity
generally indicates a lack of any practicable alternatives to the action taken.
At common law, a person is entitled to use reasonable force in self-defence or
to protect another person where there is actual danger or a reasonable
apprehension of immediate danger; to protect land or goods from unjustified
interference; to remove a trespasser from land; and to recover goods from
someone who has wrongfully taken and detained them. The safeguards in the
Instrument essentially set out the common law.
In addition to the Instrument, Part 6 of the Residential
Tenancies Act sets out various limitations as to the recovery of possession of
premises. For example, section 120 makes it an offence to enter premises unless
it is abandoned or given vacant possession, or unless the person is acting in
accordance with a warrant, while subsection 121(4) of the Residential Tenancies
Act provides that a warrant should be in the approved form and must authorise a
Sheriff to enter specified residential premises and to give possession to the
person in the warrant. This provides sufficient procedural checks prior to any
warrant for possession being executed.
The requirements in section 10 of the Instrument broadly
encompass the Committee's suggestions, listed in 1.488 of the Committee's Twenty‑second
Report of the 4th Parliament. In particular, where the Committee suggests
that infliction of injury is to be avoided if possible, this would fall within
the safeguard that the Sheriff or Deputy Sheriff must not use more force than
necessary and reasonable to execute the warrant. There is nothing in the
provisions that would remove liability for any unnecessary infliction of
injury.
The combination of these various requirements ensures that
the least rights restrictive approach will be taken by Sheriffs and Deputy
Sheriffs in executing warrants for possession of land.[20]
Committee response
2.50
The committee thanks the Attorney-General for his response. The
committee considers that the response demonstrates that the measures are likely
to be proportionate to their stated objective. In particular, the committee
notes the definition of 'reasonable force' as it relates to the use of force by
a Sheriff or Deputy Sheriff, and the required necessity that there is a lack of
any practicable alternatives to the action taken.
2.51
The committee therefore considers that the measure may be compatible
with the right to security of the person and has concluded its examination of
this matter.
The Hon Philip Ruddock MP
Chair
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