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.
Criminal Code Amendment (Private Sexual Material) Bill 2015
Sponsor:
Tim Watts MP; Terri Butler MP
Introduced: House of
Representatives, 12 October 2015
Purpose
2.3
The Criminal Code Amendment (Private Sexual Material) Bill 2015 (the
bill) seeks to amend the Criminal Code Act 1995 (Criminal Code) to
criminalise what is colloquially referred to as 'revenge porn'. Specifically,
the bill would introduce three new telecommunications offences that would make
it an offence to:
-
use a carriage service to, without consent, publish private
sexual material;
-
threaten to do so; or
-
possess, control, produce, supply or obtain private sexual
material for use through a carriage service.
2.4
Measures raising human rights concerns or issues are set out below.
Background
2.5
The committee previously considered the bill in its Thirtieth Report
of the 44th Parliament (previous report) and requested further information
from the legislation proponents as to the compatibility of the bill with the
right to a fair trial (presumption of innocence).[1]
Reversal of the burden of proof
2.6
Proposed section 474.24H of the bill provides a number of exceptions to
the proposed new offences introduced by the bill, including if the conduct was:
-
engaged in for the public benefit;
-
in relation to news, current affairs, information or a
documentary (and there was no intention to cause harm);
-
by a law enforcement officer, or an intelligence or security
officer, acting in the course of his or her duties; or
-
in the course of assisting the Children's e-Safety Commissioner
or relating to content filtering technology.
2.7
These exceptions reverse the burden of proof, requiring the defendant to
bear an evidential burden if relying on these defences.
2.8
The committee considered in its previous report that the reversal of the
burden of proof engages and limits the right to a fair trial (presumption of
innocence).
Right to a fair trial (presumption
of innocence)
2.9
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). Article 14(2)
of the 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.
2.10
An offence provision which requires the defendant to carry an evidential
or legal burden of proof, commonly referred to as 'a reverse burden', with
regard to the existence of some fact engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
2.11
Where a statutory exception, defence or excuse to an offence is provided
in proposed legislation, these defences or exceptions must be considered as
part of a contextual and substantive assessment of potential limitations on the
right to be presumed innocent in the context of an offence provision. Reverse
burden offences will be likely to be compatible with the presumption of
innocence where they are shown by legislation proponents to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent.
Compatibility of the measure with
the right to a fair trial
2.12
The statement of compatibility for the bill does not acknowledge that
the right to a fair trial is engaged by these measures. The explanatory
memorandum to the bill also provides little justification for these measures.[2]
2.13
As set out the committee's Guidance Note 2,[3]
reverse burden offences are likely to be compatible with the presumption of
innocence where they are shown by the legislation proponent to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent.
2.14
It is the committee's usual expectation that, where a reverse burden
offence is introduced, legislation proponents provide a human rights assessment
in the statement of compatibility, in accordance with the committee's Guidance
Note 1.[4]
2.15
The committee therefore sought the advice of the legislation proponents
as to whether the proposed exceptions 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.
Legislation proponent's response
Firstly, as is stated in the Explanatory Memorandum to the
bill, the defences proposed in section 474.24H mirror the defences in the
Criminal Code for offences relating to 'child pornography material' and 'child
abuse material' along with the addition of a new defence for 'media activities'
in proposed subsection 474.24H(3). It would lead to inconsistent results if an
evidential burden were placed on the defendant for the other identical defences
in the Criminal Code, but not for the defences for the proposed new offences in
the bill.
In addition, reversing the onus of proof may be justified
where it is particularly difficult for a prosecution to meet a legal burden. It
may be considered justifiable to reverse the onus of proof on an issue that is
'peculiarly within the knowledge' of the accused. In regard to the defence for
'media activities', the reversal is justified because the defences goes to why
the defendant engaged in the conduct (paragraph (3)(a)), the intention of the
defendant (paragraph (3)(b)) and the reasonable belief of the defendant
(paragraph (3)(c)), all of which are peculiarly within the knowledge of the
defendant.
Further, the seriousness of a crime may justify placing a
legal burden of proof on the accused. For the other defences proposed in
section 474.24H, the seriousness of the offending conduct means that the
defendant should not even consider engaging in the conduct in reliance on the
defence unless they can point to evidence suggesting that defence applies.[5]
Committee response
2.16
The committee thanks the legislation proponent for his response.
The committee considers that the response demonstrates that the defences
provided in the bill are likely to be peculiarly within the defendant's
knowledge. Accordingly, the committee considers that the bill is compatible
with the right to a fair trial (presumption of innocence) and has concluded its
examination of the bill.
Federal Courts Legislation Amendment (Fees) Regulation 2015 [F2015L00780]
Portfolio:
Attorney-General
Authorising
legislation: Federal Court of Australia Act 1977; Family Law Act 1975;
and Federal Circuit Court of Australia Act 1999
Last day to
disallow: 20 August 2015
Purpose
2.17
The Federal Courts Legislation Amendment (Fees) Regulation 2015 (the
regulation) amended the Federal Court and Federal Circuit Court Regulation 2012
to increase all fee categories by 10 per cent for the federal courts, except
for those fees not subject to a biennial fee increase.
2.18
Schedule 2 of the regulation amended the Family Law (Fees) Regulation
2012 to:
-
increase the fee for certain divorce applications, consent orders
and issuing subpoenas by a prescribed amount;
-
increase all other existing family law fee categories (by an
average of 10 per cent) except for the reduced divorce fee in the Federal
Circuit Court and divorce fees in the Family Court of Australia; and
-
establish a new fee category for the filing of an amended
application.
2.19
Measures raising human rights concerns or issues are set out below.
Background
2.20
On 25 June 2015, the Senate disallowed Schedule 2 of the regulation.
Accordingly, the committee's analysis deals only with Schedule 1 of the
regulation which continues in force.[6]
2.21
The committee previously considered the regulation in its Twenty-fifth
Report of the 44th Parliament (previous report) and requested further
information from the Attorney-General as to the compatibility of the regulation
with the right to a fair hearing.[7]
Increased fees for federal court proceedings
2.22
Schedule 1 of the regulation increased the costs in all fee categories
by 10 per cent for all proceedings in the federal courts. This
includes the costs of commencing an application or appeal and the costs for the
hearing of the application or appeal.
2.23
The committee noted in its previous report that this engages and may
limit the right to a fair hearing (access to justice).
Right to a fair hearing
2.24
The right to a fair hearing is protected by article 14 of the
International Covenant on Civil and Political Rights (ICCPR). The right applies
to both criminal and civil proceedings, to cases before both courts and
tribunals and to military disciplinary hearings. The right is concerned with
procedural fairness, and encompasses notions of equality in proceedings, the
right to a public hearing and the requirement that hearings are conducted by an
independent and impartial body. Circumstances which engage the right to a fair
trial and fair hearing may also engage other rights in relation to legal
proceedings contained in Article 14, such as the presumption of innocence and
minimum guarantees in criminal proceedings.
2.25
The right also includes the right to have equal access to the courts,
regardless of citizenship or other status. This requires that no one is to be
barred from accessing courts or tribunals (although limited exceptions are
allowed if based on objective and reasonable grounds such as, for example, the
prevention of vexatious litigation). Effective realisation of this right may
require access to legal aid and the regulation of fees or costs that could
indiscriminately prevent access to justice.
Compatibility of the measure with
the right to a fair hearing
2.26
The statement of compatibility states that the regulation does not
engage any of the applicable rights or freedoms and does not raise any human
rights issues.
2.27
However, a substantial increase in the cost of making an application to
the federal courts, and in conducting a case before the courts, engages the
right to a fair hearing, which includes a right to access to justice. The UN
Human Rights Committee has said that the imposition of fees on the parties to
proceedings that would in practice prevent their access to justice might raise
concerns in relation to the right to a fair hearing.[8]
2.28
Whether the right is limited will depend on whether the increase in fees
to access the federal courts would indiscriminately prevent access to justice.
No information is provided in the statement of compatibility as to whether
there is any ability for an applicant to seek to have the fees waived if the
fees would effectively prevent them from accessing the federal courts.
2.29
The committee therefore sought the advice of the Attorney-General as to the
effect of the measure on access to justice, and the likely limitations on the
right to a fair hearing.
Attorney-General's response
I acknowledge that the Committee has considered the
Regulation in its Twenty-fifth Report of the 44th Parliament and has
sought my advice about whether changes to general federal law fees pursuant to
the Regulation are a limitation to access to justice, thereby raising questions
about its compatibility with Article 14 of the International Covenant on Civil
and Political Rights (right to a fair hearing).
As you know, the imposition of a reasonable fee in relation
to Court proceedings (or an increase to an existing fee) does not of itself
constitute denial of access to justice so as to violate Article 14. I consider
that this increase falls well within that principle.
As stated in the explanatory materials, changes to federal
law fees under the Regulation increased all general federal law fees by 10 per
cent (except for those fees not subject to a biennial fee increase), following
a restructure of fee categories for public authorities and publicly listed
companies filing matters, other than bankruptcy matters, in the Federal Court
and Federal Circuit Court of Australia.
The changes did not, however, affect existing exemptions,
deferral and waiver provisions in the Federal Court and Federal Circuit
Court Regulation 2012. These provisions continue to apply to general
federal law fees.
Division 2.3 of the Federal Court and Federal Circuit Court
Regulation provides that fee exemptions are available across all general
federal law fee categories, with the exception of the filing fee to register a
New Zealand judgment under the Trans-Tasman Proceedings Act 2010. Listed
categories of vulnerable users of the court, such as individuals under the age
of 18 years, holders of pension, concession or health care cards and those who
have been granted legal aid, are specifically exempted from paying court fees.
Additionally, Division 2.3 provides a broad discretion to grant fee exemptions
to individuals where payment of fees would cause financial hardship to the
individual, having regard to the individual's income, day-to-day living
expenses, liabilities and assets.
Division 2.4 of the Federal Court and Federal Circuit Court
Regulation provides for the waiver of fees for proceedings under specific
legislation, such as hearing appeals in relation to unlawful discrimination
proceedings under the Australian Human Rights Commission Act 1986 or Fair
Work Act 2009.
Division 2.5 of the Federal Court and Federal Circuit Court
Regulation provides a broad discretion to grant a deferral of payment of most
general federal law fees in circumstances where an individual urgently needs to
file a document or where, considering an individual's financial circumstances,
it would be oppressive or otherwise unreasonable to require payment of the fee.
I consider the availability of fee exemptions, waivers and
deferrals to be an important safeguard to ensure that those facing financial
hardship or other difficult circumstances are not affected by any changes to
court fees. On the basis that fee exemptions, deferrals and waivers continue to
apply, I do not consider that the changes to general federal law fees provided
in the Regulation limit the ability of parties to access justice or the right
to a fair hearing.[9]
Committee response
2.30
The committee thanks the Attorney-General for his response.
2.31
The Committee agrees that the imposition of reasonable fees in
relation to Court proceedings does not, of itself, constitute denial of access
to justice so as to limit the right to a fair hearing.
2.32
Having regard to the Attorney-General's advice as to the fee
exemptions, waivers and deferrals that are available to individuals suffering
financial hardship, the committee considers that the proposed increase in court
fees is not so high as to indiscriminately prevent access to justice, and
therefore considers the regulation is likely to be compatible with the right to
a fair hearing.
The Hon Philip Ruddock MP
Chair
Navigation: Previous Page | Contents