New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 27 and 30 March 2017(consideration of 2 bills from this period has been
deferred);[1]
-
legislative instruments received between 10 March and 6 April
2017 (consideration of 5 legislative instruments from this period has been
deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
1.3
The committee has concluded its examination of the previously deferred Civil
Law and Justice Legislation Amendment Bill 2017 and makes no further comment on
the bill.[3]
Instruments not raising human rights concerns
1.4
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[4]
Instruments raising human rights concerns are identified in this chapter.
1.5
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.
1.6
In addition to the bill above, the committee has also concluded its
examination of the previously deferred National Disability Insurance Scheme
(Plan Management) Amendment Rules 2017 [F2017L00073] and makes no further
comment on the instrument.[5]
Response required
1.7
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill
2017
Purpose |
Seeks to make a range of
amendments to the Australian Federal Police Act 1979, Crimes Act
1914, and the Criminal Code Act 1995 including clarifying the functions of the Australian Federal
Police to enable cooperation with international organisations, and
non-government organisations; clarifying the custody notification obligations
of investigating officials when they intend to question an Aboriginal person
or Torres Strait Islander; creating separate offence regimes for 'insiders'
and 'outsiders' for the disclosure of information relating to controlled
operations in the Crimes Act 1914 |
Portfolio |
Justice |
Introduced |
House of Representatives,
30 March 2017 |
Rights |
Privacy; life; freedom from
torture, cruel, inhuman or degrading treatment or punishment (see Appendix
2) |
Status |
Seeking additional
information |
Functions of the Australian Federal Police – assistance and sharing
information
1.8
Schedule 1 of the Crimes Legislation Amendment (Powers, Offences and
Other Measures) Bill 2017 (the bill) seeks to make amendments to the Australian
Federal Police Act 1979 (AFP Act) to enable the Australian Federal Police
(AFP) to provide assistance and cooperation to international organisations and
non-government organisations in relation to the provision of police services or
police support services.
1.9
Under section 4 of the AFP Act 'police services' is defined as services
by way of the prevention of crime and the protection of persons from injury or
death, and property from damage, whether arising from criminal acts or
otherwise. 'Police support services' means services related to: (a) the
provision of police services by an Australian or foreign law enforcement
agency; or (b) the provision of services by an Australian or foreign
intelligence or security agency; or (c) the provision of services by an
Australian or foreign regulatory agency.
Compatibility of the measure with
the human rights
1.10
The statement of compatibility states that this measure allows for
information sharing with a range of bodies such as Interpol, United Nations
organisations and non-government organisations (NGOs) and accordingly:
...may engage the right to protection against arbitrary and
unlawful interferences with privacy in Article 17 of the International Covenant
on Civil and Political Rights (ICCPR), as the amendments to the AFP Act provide
for information sharing with international organisations, including international
judicial bodies.[6]
1.11
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
1.12
The statement of compatibility states that the objective of the measure
is to ensure:
the AFP can engage fully with international organisations,
including judicial bodies, and NGOs, in relation to the provision of police
services and police support services.[7]
1.13
This is likely to be, in broad terms, a legitimate objective for the
purposes of international human rights law. However, there are questions about
the adequacy of safeguards that are in place with respect to AFP assistance and
cooperation with such bodies including the sharing of information.
1.14
First, in respect of the right to privacy, the statement of
compatibility notes that the use and disclosure of information will be subject
to existing protections under the Privacy Act 1988 (Privacy Act).
However, it is not readily apparent from the statement of compatibility the
extent to which the minister considers that the existing safeguards in the Privacy
Act will apply with respect to AFP sharing of information with international
organisations and NGOs.
1.15
The relevant principle under the Privacy Act pertaining to the use or
disclosure of personal information (Australian Privacy Principle 6) contains a
broad exception to the general requirement that an agency must not use or
disclose 'personal information' for a secondary purpose, where the use or
disclosure of information is 'required or authorised by or under an Australian
law'.[8]
The statement of compatibility does not address whether the measure would
constitute an authorisation for the purposes of Australian Privacy Principle
6.2. The legislation does not state that it provides an authorisation for the
purpose of any Australian Privacy Principle (by contrast to express statements
to that effect included in some other legislation).[9]
1.16
There is a further exception for the use or disclosure of information
that is reasonably necessary for enforcement activities conducted by or on
behalf of an enforcement body. This exception would appear not to apply as the
definition of 'enforcement body' under the Privacy Act does not extend beyond
Australian agencies or other bodies. However, the statement of compatibility
does not address whether the minister considers that information sharing with
international organisations and NGOs may fall within this exception.
1.17
Second, the sharing of information overseas in the context of law
enforcement raises concerns in respect of the right to life.
1.18
Under international human rights law every human being has the inherent
right to life, which should be protected by law. The right to life imposes an
obligation on state parties to protect people from being killed by others or
identified risks. While the International Covenant on Civil and Political
Rights (ICCPR) does not completely prohibit the imposition of the death penalty,
international law prohibits states which have abolished the death penalty (such
as Australia) from exposing a person to the death penalty in another nation state.
As the United Nations Human Rights Committee (UNHRC) has made clear, this not only
prohibits deporting or extraditing a person to a country where they may face the
death penalty, but also prohibits the provision of information to other
countries that may be used to investigate and convict someone of an offence to
which the death penalty applies. In this context, the UNHRC stated in 2009 its concern
that Australia lacks 'a comprehensive prohibition on the providing of
international police assistance for the investigation of crimes that may lead
to the imposition of the death penalty in another state', and concluded that
Australia should take steps to ensure it 'does not provide assistance in the
investigation of crimes that may result in the imposition of the death penalty
in another State'.[10]
1.19
The sharing of information internationally under the proposed function
in schedule 1 could accordingly engage the right to life. This issue is not
addressed in the statement of compatibility.
1.20
Third, a related issue potentially raised by the measure is the
possibility that sharing of information, or cooperation in investigation, may
result in torture, or cruel, inhuman and degrading treatment or punishment. It
is noted that the right to be free from torture and cruel, inhuman and
degrading treatment is absolute under international law and can never be
subject to permissible limitations.[11]
This issue was not addressed in the statement of compatibility, including any
relevant safeguards.
Committee comment
1.21
The preceding analysis raises questions as to whether the measure
is compatible with the right to privacy, the right to life and the prohibition
on torture, cruel, inhuman and degrading treatment.
1.22
In relation to the right to privacy, the committee therefore
seeks the advice of the Minister for Justice as to the proportionality of the
measure including the availability of effective and adequate safeguards,
including the extent to which the provisions of the Privacy Act 1988
will act as a safeguard against the use and disclosure of personal information
for a secondary purpose.
1.23
In relation the right to life, the committee seeks the advice of
the minister about the compatibility of the measure with this right (including
the existence of relevant safeguards).
1.24
In relation to the prohibition on torture, or cruel,
inhuman and degrading treatment or punishment, the committee seeks the advice
of the minister in relation to the compatibility of the measure with this right
(including any relevant safeguards).
Defence Legislation Amendment (2017 Measures No. 1)
Bill 2017
Purpose |
This bill seeks to amend
several Acts relating to defence to:
-
allow a positive test result for
prohibited substances to be disregarded under certain circumstances;
-
simplify termination provisions
to align with the new Defence Regulation 2016 [F2016L01568];
-
ensure greater protections for
all Reservists in relation to their employment and education;
-
include the transfer of
hydrographic, meteorological and oceanographic functions from the Royal
Australian Navy to the Australian Geospatial-Intelligence Organisation; and
-
align a small number of
provisions in the Australian Defence Force Cover Act 2015 with
other military superannuation schemes and provide clarity in definitions
|
Portfolio |
Defence |
Introduced |
House of Representatives,
29 March 2017 |
Rights |
Fair trial; to be presumed
innocent; not to be tried and punished twice; not to incriminate oneself (see
Appendix 2) |
Status |
Seeking additional
information |
Civil penalty provisions
1.25
Schedule 2, Part 2 of the Defence Legislation Amendment (2017 Measures
No. 1) Bill 2017 (the bill) seeks to amend the Defence Reserve Service
(Protection) Act 2001 (the Act) so that various existing criminal
offences in the Act are also civil penalty provisions. The range of existing
criminal offences to which the new civil penalty provisions would apply relate
to discrimination in employment and partnerships, and
discrimination against commission agents and contractors. Each of these
criminal offences carries a penalty of 30 penalty units (currently $5400). The
proposed corresponding civil penalty would be 100 penalty units (currently
$18,000).[12]
1.26
Schedule 2, Part 2 of the bill also seeks to amend the Act to introduce a
new offence provision. The offence in proposed section 76B relates to
victimisation of a person for reasons that include where the person has made a
complaint, given information or documents, or brought proceedings under the
Act. Contravention of proposed section 76B would amount to a criminal offence with
30 penalty units and the proposed civil penalty would be 100 penalty units.
1.27
Schedule 2, Part 3 of the bill also seeks to amend the Act to introduce
three new offence provisions. The new offence in proposed section 18A relates
to dissolving a partnership, expelling a partner from a partnership, requiring
a partner to forfeit their share in a partnership, or subjecting another
partner to detriment concerning the partnership. The new offence in proposed section
23A prohibits the harassment of a protected worker,[13]
partner or protected co-worker,[14]
if it is engaged in because the subject of the harassment may volunteer to
render defence service, is rendering defence service, or has previously
rendered defence service.
1.28
Contravention of proposed sections 76B, 18A and 23A would amount to a
criminal offence with 30 penalty units and the proposed civil penalty would be
100 penalty units.
Compatibility of the measure with
criminal process rights
1.29
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities). However, if the new civil penalty provisions are
regarded as 'criminal' for the purposes of international human rights law, they
will engage the criminal process rights under articles 14 and 15 of the
International Covenant on Civil and Political Rights (ICCPR).
1.30
The question as to whether a civil penalty might be considered to be
'criminal' for the purposes of international human rights law may be a
difficult one and often requires a contextual assessment. It is settled that a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR,
despite being classified as 'civil' under Australian domestic law. The
committee's Guidance Note 2 sets out some of the key human rights
compatibility issues in relation to provisions that create offences and civil
penalties.[15]
Where a penalty is 'criminal' for the purposes of international human rights
law this does not mean that it is necessarily illegitimate or unjustified.
Rather it means that criminal process rights such as the right to be presumed
innocent (including the criminal standard of proof) and the right not to be
tried and punished twice (the prohibition against double jeopardy) apply.[16]
1.31
It is acknowledged that, as set out in the statement of compatibility,
many of the civil penalty provisions are intended to promote the right to safe
and healthy working conditions and 'enhance the anti-discrimination protections
in the Act, and introduce new anti-victimisation and anti-harassment
provisions.'[17]
1.32
As mentioned above, the committee's Guidance Note 2 sets out
detailed guidance in relation to civil penalty provisions and provides that
'where a civil penalty provision could potentially be considered 'criminal' the
statement of compatibility should explain whether the civil penalty provisions
should be considered to be 'criminal' for the purposes of international human
rights law'.[18]
1.33
However, the statement of compatibility has not addressed whether the
civil penalty provisions might be considered 'criminal' for the purposes of
international human rights law.
1.34
Applying the tests set out in the committee’s Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look at its
classification in domestic law. As the civil penalty provisions are not classified
as 'criminal' under domestic law they will not automatically be considered
'criminal' for the purposes of international human rights law.
1.35
The second step in assessing whether the civil penalties are 'criminal'
under international human rights law is to look at the nature and purpose of
the penalties. In this regard, the explanatory memorandum explains:
Civil penalty provisions provide a less cumbersome and
technical enforcement process than criminal prosecutions. Contraventions of the
Act can be insidious and indirect, making it difficult to prove an offence
beyond reasonable doubt. For example, establishing that an employee was
dismissed or disadvantaged for a prohibited reasons will often be very
difficult to prove to the criminal standard, whereas the standard of proof for
a civil penalty could be met. Including a civil penalty regime will provide an
important deterrent to indirect discrimination against Reserve members. Civil
penalties are also more appropriate when dealing with government employers, who
are not liable to criminal remedies.[19]
1.36
Civil penalty provisions are more likely to be considered 'criminal' in
nature if they are intended to punish or deter, irrespective of their severity;
and apply to the public in general. The reference to the deterrent effect of
the proposed regime is therefore relevant and may indicate that the provisions
are 'criminal' for the purposes of international human rights law. On the other
hand, there is no indication that the regime is intended to be punitive, and it
appears restricted to a particular employment context rather than applying to
the public in general.
1.37
The third step in assessing whether the penalties are 'criminal' under
international human rights law is to look at their severity. In assessing
whether a pecuniary penalty is sufficiently severe to amount to a 'criminal'
penalty, the maximum amount of the pecuniary penalty that may be imposed under
the civil provision relative to the penalty that may be imposed for a
corresponding criminal offence is relevant.
1.38
The amount of the pecuniary penalties that would be imposed under the
proposed civil penalty provisions in the bill is 100 penalty units (currently
$18000). The penalties that would be imposed for the corresponding criminal
offences is 30 penalty units (currently $5400). As such, the civil penalties
that would be imposed for the same offences under the Act are substantially
higher than the penalties that may be imposed for the corresponding criminal
offences (currently $12600 higher). These higher penalties may indicate that
the civil penalties could be considered 'criminal'.
1.39
The above analysis therefore raises questions about whether the civil
penalties may be considered 'criminal' for the purposes of international human
rights law. As set out above, the consequence of the provisions being
'criminal' would be that the civil penalty provisions in the bill must be shown
to be consistent with the criminal process rights set out in articles 14 and 15
of the ICCPR. The statement of compatibility has not provided information to
address whether each of the proposed civil penalty provisions may be considered
'criminal', and if so, whether the measures accord with criminal process
rights. Accordingly, it is difficult to fully assess the human rights
compatibility of the civil penalties without this further information.
Committee comment
1.40
The committee draws the attention of the Minister for Defence to
its Guidance Note 2 and seeks the advice of the minister as to whether:
-
the civil penalty provisions introduced by the bill may be
considered to be 'criminal' in nature for the purposes of international human
rights law (having regard to the committee's Guidance Note 2); and
-
if the penalties are considered 'criminal' for the purposes of
international human rights law, whether the measures accord with criminal
process rights (including specific guarantees of the right to a fair trial in
the determination of a criminal charge such as the presumption of innocence (article
14(2)), the right not to incriminate oneself (article 14(3)(g)), the right not
to be tried and punished twice for an offence (article 14(7)) and a guarantee
against retrospective criminal laws (article 15(1))).
Fair Work Amendment (Corrupting Benefits) Bill 2017
Purpose |
This bill seeks to amend
the Fair Work Act 2009 to:
-
make it a criminal offence to
give a registered organisation, or a person associated with a registered
organisation a corrupting benefit;
-
make it a criminal offence to
receive or solicit a corrupting benefit;
-
make it a criminal offence for a
national system employer other than an employee organisation to provide,
offer or promise to provide any cash or in kind payment, other than certain
legitimate payments to an employee organisation or its prohibited
beneficiaries;
-
make it a criminal offence to
solicit, receive, obtain or agree or obtain any such prohibited payment;
-
require full disclosure by
employers and unions of financial benefits they stand to gain under an
enterprise agreement before employee vote on the agreement
|
Portfolio |
Employment |
Introduced |
House of Representatives,
22 March 2017 |
Rights |
Fair trial; not to be tried
and punished twice (double jeopardy) (see Appendix 2) |
Status |
Seeking additional
information |
New offences and concurrent operation of state laws
1.41
The Fair Work Amendment (Corrupting Benefits) Bill 2017 (the bill)
proposes to introduce a number of offence provisions, including in relation to
the giving, receiving or soliciting of 'corrupting benefits' or making certain
payments. Proposed section 536C provides that the new part introducing these
offences does not exclude or limit the concurrent operation of a state or
territory law. It states that even if an act or omission (or similar act or
omission) would constitute an offence under this proposed Part and would
constitute an offence or be subject to a civil penalty under state or territory
law, these offence provisions can operate concurrently.
Compatibility of the measure with
the right to a fair trial
1.42
A specific guarantee of the right to a fair trial in the determination
of a criminal charge includes the right not to be tried and punished twice for
an offence for which a person has already been finally convicted or acquitted
(sometimes referred to as the principle of double jeopardy) (see, article 14(7)
of the International Covenant on Civil and Political Rights (ICCPR)).
1.43
The effect of proposed section 536C of the Fair Work Act 2009
appears be that a person could be liable to be tried and punished for an act or
omission under a state or territory law as well under this proposed
Commonwealth law. Accordingly, the right not to be tried and punished twice for
an offence is engaged and may be limited by the measure.
1.44
It is not clear if any state or territory offences (for example,
criminalising corrupt benefits) may be the same or substantially the same
offences as the new offences proposed (for example, the corrupting benefits
offences), and if so, what effect proposed section 536C may have on the right
not to be tried or punished again for the same offence.
1.45
It is noted that section 4C of the Crimes Act 1914 provides that
a person is not liable for being tried and published twice under Commonwealth
law if they have been punished for that offence under the law of a state or the
law of a territory. While this is an important safeguard, it does not address
possible prosecution under a state or territory law after being prosecuted
under commonwealth law.
1.46
This matter is not addressed in the statement of compatibility. The
committee's usual expectation is that, where a human right is engaged, the
statement of compatibility provide a reasoned explanation of why the measure is
compatible with that right. This conforms with the committee's Guidance Note
1, and the Attorney-General's Department's guidance on the preparation of
statements of compatibility.
1.47
The United Nations Human Rights Committee, in General Comment 32,
provides the following guidance to nation states with respect to the right not
to be tried and punished twice for the same offence under article 14(7) of the
ICCPR:
Article 14, paragraph 7 of the Covenant, providing that no
one shall be liable to be tried or punished again for an offence of which they
have already been finally convicted or acquitted in accordance with the law and
penal procedure of each country, embodies the principle of ne bis in idem.
This provision prohibits bringing a person, once convicted or acquitted of a
certain offence, either before the same court again or before another tribunal
again for the same offence; thus, for instance, someone acquitted by a civilian
court cannot be tried again for the same offence by a military or special
tribunal. Article 14, paragraph 7 does not prohibit retrial of a person
convicted in absentia who requests it, but applies to the second conviction.
Repeated punishment of conscientious objectors for not having obeyed a renewed
order to serve in the military may amount to punishment for the same crime if
such subsequent refusal is based on the same constant resolve grounded in
reasons of conscience.
The prohibition of article 14, paragraph 7, is not at issue
if a higher court quashes a conviction and orders a retrial. Furthermore, it
does not prohibit the resumption of a criminal trial justified by exceptional
circumstances, such as the discovery of evidence which was not available or
known at the time of the acquittal.
This guarantee applies to criminal offences only and not to
disciplinary measures that do not amount to a sanction for a criminal offence
within the meaning of article 14 of the Covenant. Furthermore, it does not
guarantee ne bis in idem with respect to the national jurisdictions of
two or more States. This understanding should not, however, undermine efforts
by States to prevent retrial for the same criminal offence through
international conventions.[20]
Committee comment
1.48
The preceding analysis raises questions about the compatibility
of the measure with the right to a fair trial and in particular the right not
to be tried and punished twice for an offence for which a person has already
been finally convicted or acquitted. The statement of compatibility has not
identified or addressed this potential limitation.
1.49
The committee therefore seeks the advice of the Minister for
Employment as to whether the measure limits the right not to be tried and
punished twice for an offence which is the same, or substantially the same, as
an offence for which the person has already been finally convicted or acquitted.
Strict liability offences
1.50
Proposed section 536F makes it an offence for a national system employer
to give cash or an in kind payment to an employee organisation or prohibited
beneficiary in circumstances where the defendant (or certain related persons)
employs a person who is (or is entitled to be) a member of that organisation
and whose industrial interests the organisation is entitled to represent.
Proposed subsection (2) states that strict liability applies to paragraphs
(1)(a), (c) and (d) of the offence, namely:
-
that the defendant is a national system employer other than an
employee organisation;
-
that the other person (to whom cash or in kind payments are made)
is an employee organisation or a prohibited beneficiary in relation to an
employee organisation; and
-
that the defendant, a spouse, or associated entity of the
defendant or a person who has a prescribed connection with the defendant,
employs a person who is, or is entitled to be, a member of the organisation and
whose industrial interests the organisation is entitled to represent.
1.51
The offence carries a maximum penalty of 2 years imprisonment or 500
penalty units for an individual (2500 for a body corporate).
1.52
In addition, proposed section 536G makes it an offence to receive or
solicit a cash or in kind payment. Proposed subsection (2) states that strict
liability applies to paragraph 1(c) which provides that if the provider of the
cash or in kind payment were to provide the benefit to the defendant or another
person, the provider or another person would commit an offence against
subsection 536F(1). The offence carries a maximum penalty of 2 years
imprisonment or 500 penalty units for an individual (2500 for a body
corporate).
Compatibility of the measures with
the right to be presumed innocent
1.53
As set out above, article 14(2) of the ICCPR protects the right to be
presumed innocent until proven guilty according to law. The right to be
presumed innocent usually requires that the prosecution prove each element of
the offence (including fault elements and physical elements). Strict liability
offences engage and limit the right to be presumed innocent as they allow for
the imposition of criminal liability without the need for the prosecution to
prove fault. In the case of a strict liability offence, the prosecution is only
required to prove the physical elements of the offence. The defence of honest
and reasonable mistake of fact is available to the defendant. Strict liability
may apply to whole offences or to elements of offences.
1.54
Strict liability offences will not necessarily be inconsistent with the
presumption of innocence where they pursue a legitimate objective, are
rationally connected to that objective and are a proportionate means of
achieving that objective.[21]
1.55
While the statement of compatibility acknowledges that the offences
engage and limit the right to be presumed innocent, it argues that this
limitation is permissible. The statement of compatibility argues that that the
attachment of strict liability is necessary to pursue the legitimate objective
of eliminating illegitimate cash or in kind payments.[22]
However, the statement of compatibility does not explain how the imposition of
strict liability is effective to achieve, or a proportionate means of
achieving, this objective.[23]
Further information from the minister in this regard will assist the committee
to conclude whether the measure permissibly limits the right to be presumed
innocent.
Committee comment
1.56
Noting that strict liability offences engage and limit the right
to be presumed innocent, the preceding analysis raises questions about whether the
strict liability offences are a permissible limitation on this right.
1.57
The committee draws to the attention of the Minister for
Employment its Guidance Note 2 which sets out information specific to strict
liability offences.
1.58
The committee requests the further advice of the minister as to:
-
how the strict liability offence is effective to achieve (that
is, rationally connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Purpose |
Amends the Fair Work Act
2009 to:
-
increase maximum civil penalties
for certain serious contraventions of the Act;
-
hold franchisors and holding
companies responsible for certain contraventions of the Act by their
franchisees or subsidiaries where they knew or ought reasonably to have known
of the contraventions and failed to take reasonable steps to prevent them;
-
clarify the prohibition on
employers unreasonably requiring their employees to make payments in relation
to the performance of work;
-
provide the Fair Work Ombudsman
with evidence-gathering powers similar to those available to corporate
regulators such as the Australian Securities and Investment Commission and
the Australian Competition and Consumer Commission
|
Portfolio |
Employment |
Introduced |
House of Representatives, 1
March 2017 |
Rights |
Fair trial; right to be
presumed innocent; not to be tried and punished twice; not to incriminate
oneself; privacy (see Appendix 2) |
Status |
Seeking additional
information |
Civil penalty provisions
1.59
Schedule 1, Part 1 of the Fair Work Amendment (Protecting Vulnerable
Workers) Bill 2017 (the bill) would increase the maximum civil penalties for
failure to comply with certain provisions of the Fair Work Act 2009 (Fair
Work Act) and would introduce a new civil penalty provision for 'serious
contraventions' of certain existing provisions of the Fair Work Act.[24]
The maximum penalty for a 'serious contravention' would be 600 penalty units
($108,000).[25]
1.60
Proposed section 557A provides that a contravention is a 'serious
contravention' if the conduct was deliberate and part of a systematic pattern of
conduct relating to one or more persons. The range of existing civil penalty
provisions to which the 'serious contravention' provision would apply are
mostly in respect of conduct by employers, however, some of the provisions also
apply to individual persons including employees.[26]
Depending on the particular civil penalty provision under the Fair Work Act,
there may be a range of persons and organisations that may seek to have a civil
penalty imposed including an employee, an employer, an employee organisation,
an employer organisation or an inspector.[27]
1.61
Schedule 1, Part 2-5 of the bill would also introduce a number of new
civil penalty provisions which can apply to individuals including for failing
to comply with a notice from the Fair Work Ombudsman (FWO), hindering or
obstructing the FWO or providing false information or documents.[28]
Compatibility of the measure with
criminal process rights
1.62
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities). However, if the increased civil penalty
provisions are regarded as 'criminal' for the purposes of international human
rights law, they will engage the criminal process rights under articles 14 and
15 of the International Covenant on Civil and Political Rights (ICCPR).
1.63
The question as to whether a civil penalty might be considered to be
'criminal' for the purposes of international human rights law may be a
difficult one and often requires a contextual assessment. It is settled that a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR,
despite being classified as 'civil' under Australian domestic law. The
committee's Guidance Note 2 sets out some of the key human rights
compatibility issues in relation to provisions that create offences and civil
penalties.[29]
1.64
Where a penalty is 'criminal' for the purposes of international human
rights law this does not mean that it is necessarily illegitimate or
unjustified. Rather it means that criminal process rights such as the right to
be presumed innocent (including the criminal standard of proof) and the right
not to be tried and punished twice (the prohibition against double jeopardy)
and the right not to incriminate oneself apply.[30]
1.65
The statement of compatibility usefully refers to the committee's Guidance
Note 2 and undertakes an assessment of whether the civil penalty provisions
in the bill should be considered to be 'criminal' for the purposes of international
human rights law.[31]
The provisions are classified as 'civil' under domestic law meaning they will
not automatically be considered 'criminal' for the purposes of international
human rights law.
1.66
In relation to the nature and purpose of the penalty, a penalty is more
likely to be considered 'criminal' in nature if it applies to the public in
general rather than a specific regulatory or disciplinary context and
proceedings are instituted by a public authority with statutory powers of
enforcement. In this regard, the statement of compatibility argues that the
nature of the penalty means that it should not be considered 'criminal':
The penalties only apply to the regulatory regime of the Fair
Work Act (e.g. employers), rather than to the public in general. While the FWO
has enforcement powers, in many cases enforcement does not rest solely with the
FWO. Proceedings in relation to the underpayment of wages or record keeping
failures for example may also be brought by an affected employee or union...These
factors all suggest that the civil penalties imposed by the Fair Work Act are
civil rather than criminal in nature.[32]
1.67
This argument supports the civil character of the relevant provisions
under international human rights law, however a countervailing consideration is
that the Fair Work Act governs terms of employment very broadly, such that it
is unclear whether the regime can categorically be said not to apply to the
public in general.
1.68
In relation to the severity of the penalty, a penalty is likely to be
considered criminal for the purposes of international human rights law if it
carries a term of imprisonment or a substantial pecuniary sanction. A maximum penalty
of 600 penalty units ($108,000)[33]
is proposed in relation to a number of the provisions. In relation to the
severity of the penalty, the statement of compatibility argues that the
provisions should not be considered 'criminal' as:
The severity of the relevant civil penalties should be
considered low. They are pecuniary penalties (rather than a more severe
punishment like imprisonment) and there is no sanction of imprisonment for
non-payment of penalties. Only courts may apply a pecuniary penalty. The
pecuniary penalties are set at levels which are considered to be consistent
with the nature and severity of the corresponding contraventions.[34]
1.69
Further, according to the explanatory memorandum, the severity of the
increased or new penalties proposed in the bill are aimed at addressing
concerns about the preventing the exploitation of vulnerable workers.[35]
The explanatory memorandum states that the bill:
...addresses concerns that civil penalties under the Fair Work
Act are currently too low to effectively deter unscrupulous employers who
exploit vulnerable workers because the costs associated with being caught are
seen as an acceptable cost of doing business. The Bill will increase relevant
civil penalties to an appropriate level so the threat of being fined acts as an
effective deterrent to potential wrongdoers.[36]
1.70
This provides one argument as to why the penalties may be considered
civil, rather than criminal, in nature insofar as they apply to employers found
to have contravened the relevant protections in the Fair Work Act. However,
there is a significant, broader range of conduct in respect of which the
increased or new civil penalties will apply. While most of the provisions apply
to employers, some of the provisions may apply to individuals including
employees.
1.71
For example, the failure of an individual employee together with other
employees to comply with a workplace determination may result in the
application of a significant civil penalty of 600 penalty units ($108,000), a
10-fold increase from the current maximum penalty of 60 penalty units.[37]
The potential application of such a large penalty to an individual in this
context raises significant questions about whether this particular measure
ought to be considered 'criminal' for the purposes of international human
rights law. It is unclear how the application of this substantial increase in
the civil penalty to any contravention of a term of a workplace determination
by 'a person' addresses the concerns regarding exploitation of vulnerable
workers by employers identified in the explanatory memorandum.
1.72
Accordingly, the statement of compatibility has not provided sufficient
information to address whether those increased civil penalties proposed in the
bill which apply to individuals including employees may be considered criminal
and, if so, whether the measure accords with the right to a fair trial.
Committee comment
1.73
The committee seeks the advice of the Minister for Employment as
to whether the civil penalty provisions in the bill may be considered to be 'criminal'
in nature for the purposes of international human rights law (having regard to
the committee's Guidance Note 2), addressing in particular:
-
whether the severity of the civil penalties that may be
imposed on individuals including employees is such that the penalties may be
considered criminal;
-
whether the increases in the maximum civil penalties could be
limited so as to, not apply, or to be reduced, in respect of individuals
including employees; and
-
if the penalties are considered 'criminal' for the purposes of
international human rights law, whether the measure accords with criminal
process rights (including specific guarantees of the right to a fair trial in
the determination of a criminal charge such as the presumption of innocence (article
14(2)), the right not to incriminate oneself (article 14(3)(g)), the right not
to be tried and punished twice for an offence (article 14(7)) and a guarantee
against retrospective criminal laws (article 15(1)).
Requirement to comply with Fair Work Ombudsman Notice ‒ coercive
information-gathering powers
1.74
The bill proposes to provide the FWO with a range of evidence gathering
powers. Proposed section 712A would empower the FWO to require a person, by
notice (FWO notice) to give information, produce documents or attend before the
FWO to answer questions where the FWO reasonably believes the person has
information or documents relevant to an investigation.[38]
Failure to comply with the FWO notice may result in a civil penalty of 600
penalty units ($108,000).[39]
1.75
Under proposed section 713(1) a person is not excused from giving
information, producing a record or document or answering a question under the
FWO notice on the basis that to do so might tend to incriminate the person.[40]
Proposed section 713(3) provides that information provided by an individual
under a FWO notice is not admissible in evidence against the individual in
proceedings. This is subject to exceptions in relation to failures to comply
with the FWO notice and false and misleading information. It is also subject to
exceptions for particular criminal offences under the Criminal Code under
section 137.1 or 137.2 relating to false and misleading information and section
149.1 in relation the obstruction of Commonwealth officials.[41]
Compatibility of the measure with
the right to privacy
1.76
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the use and sharing of such information and the right to control
the dissemination of information about one's private life.
1.77
The breadth of this power to compel individuals to provide information
including private and confidential information and attend for questioning is a
serious and extensive limitation on the right to privacy. The power applies
even in respect of information which may tend to incriminate the individual and
serious penalties may be imposed for non-compliance.[42]
1.78
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
1.79
The statement of compatibility acknowledges that the powers would engage
the right to privacy and identifies the objective of the powers as:
...helping to achieve positive investigative outcomes where
existing powers have been demonstrated to fall short...New powers will enable the
most serious cases involving the exploitation of vulnerable workers to be propertly
[sic] investigated and help ensure the lawful payment of wages.[43]
1.80
In broad terms achieving positive investigative outcomes in relation to
serious cases of exploitation and ensuring the lawful payment of wages is
likely to be a legitimate objective for the purposes of international human
rights law.
1.81
However, the statement of compatibility provides very limited
information as to whether the measure will be rationally connected to, or a
proportionate way of, achieving this objective. There is no reasoning or
evidence provided as to how it is anticipated that the powers will be effective
in achieving their objective.
1.82
Instead the statement of compatibility states that the new powers are
similar to those provided in other regimes, but provides no further details as
to the effectiveness of these existing powers. It is noted that the fact some
other bodies may have coercive evidence gathering powers does not mean those
regimes are justifiable limits on the right to privacy, nor does it necessarily
mean that such powers will be justifiable limits in this particular context. The committee has previously considered similar coercive
evidence gathering powers in the workplace relations context for the building
and construction industry, and could not conclude that such powers were
compatible with the right to privacy.[44]
The committee's consideration of similar measures and its previous concerns
about human rights compatibility were not addressed in the statement of
compatibility.
1.83
To be proportionate, a limitation on the right to privacy should only be
as extensive as is strictly necessary to achieve its legitimate objective and must
be accompanied by appropriate safeguards. However, there are serious questions
about whether such powers constitute a proportionate limit on the right to
privacy in this case.
1.84
First, the breadth of the powers in question seems to be much broader
than necessary to address the stated objective of the measure. The powers are not
limited to achieving positive investigative outcomes in relation to the
exploitation of workers and ensuring the lawful payment of wages. Rather the
information that might be compelled applies to a broad range of industrial
matters. This could include, for example, matters relating to the regulation of
industrial action by employees. Accordingly, the proposed powers appear to be
insufficiently circumscribed with reference to the stated objective of the
measure.
1.85
Second, the statement of compatibility argues that the 'FWO's graduated
approach to compliance and enforcement means that these powers will only be
used where other co-operative approachs [sic] have failed or are
inappropriate.'[45]
However, no such restriction on the use of these powers is contained in the
bill. This means that the powers could be used in a much broader range of
circumstances and accordingly raises further questions about whether the
measure as drafted is sufficiently circumscribed.
1.86
Third, it is unclear whether there are sufficient safeguards to ensure
that the measure is a proportionate limit on human rights. The statement of
compatibility addresses some safeguards that may be available in relation to
the exercise of the measure including providing 14 days' notice to a person and
permitting a person's lawyer to be present during questioning. However, the
absence of external review of an FWO notice at the time it is made may
substantially reduce the adequacy of these safeguards. For example, there is no
requirement that an application be made to the Administrative Appeals Tribunal
(AAT) for the grant of a notice as was the case with previous legislation which
regulated particular industries. It is noted that such a process could assist
to ensure a FWO notice is necessary in an individual case.[46]
The statement of compatibility does not address the apparent lack of external safeguards
that would apply prior to issuing an FWO notice, nor what oversight
mechanisms will exist in relation to the regime.
1.87
Fourth, as noted above, the committee has previously considered similar
coercive evidence gathering powers in the workplace relations context and could
not conclude that such powers were compatible with the right to privacy.[47] Australia has
also been criticised for similar coercive information gathering powers by
international treaty monitoring bodies on the basis of the breadth of the
powers conferred and the absence of adequate safeguards on a number of
occasions.[48]
1.88
Fifth, it is unclear whether such extensive coercive powers, which go
beyond those that are usually available to police in the context of criminal
investigations, are proportionate to the investigation of industrial matters.
It is noted in this respect that section 713(1) also abrogates the privilege
against self-incrimination. The question arises as to whether the measure is
the least rights restrictive way of achieving the stated objective of the
measure as required to be a permissible limit on the right to privacy.
Committee comment
1.89
The preceding analysis raises questions about the compatibility
of proposed coercive powers to compel individuals to provide information and
attend for questioning with the right to privacy.
1.90
The committee therefore seeks the advice of the Minister for
Employment as to:
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, including with regard to the matters
set out at [1.82] to [1.88].
Compatibility of the measure with
the right to not to incriminate oneself
1.91
The specific guarantees of the right to a fair trial in the
determination of a criminal charge guaranteed by article 14 of the ICCPR
include the right not to incriminate oneself (article 14(3)(g)).
1.92
Proposed section 713(1) engages and limits this right by providing that
a person is not excused from giving information, producing a record or document
or answering a question under a FWO notice on the basis that to do so might
tend to incriminate that person.
1.93
While the right not to incriminate oneself may be permissibly limited
provided the limitation is appropriately justified, this right was not assessed
in the statement of compatibility so no justification was provided. The
committee's usual expectation where a measure limits a human right is that the
accompanying statement of compatibility provide a reasoned and evidence-based
explanation of how the measure supports a legitimate objective, is rationally
connected to that objective and is a proportionate way to achieve that
objective. This conforms with the committee's Guidance Note 1,[49] and the
Attorney-General's Department's guidance on the preparation of statements of
compatibility.[50]
1.94
While the statement of compatibility does not provide an assessment of
the measure against the right not to incriminate oneself, the explanatory
memorandum provides some relevant information:
Abrogating the privilege against self-incrimination is
necessary to ensure the FWO has all the available, relevant information to
properly carry out its statutory functions. It is particularly important to
address non-compliance by those determined to disregard workplace laws... those who may
be best placed to give information about possible contraventions of workplace
laws may have had some level of involvement in those contraventions or may have
contravened another law. If the privilege is not abrogated, there may be no
reason for such individuals to provide information to the FWO.[51]
1.95
It can readily be accepted that the removal of the privilege against
self-incrimination means that more information might be obtained by the FWO to
carry out its functions. However, without further information, this explanation
does not sufficiently identify a legitimate objective, that is, one which
addresses a pressing and substantial concern, for the purposes of international
human rights law.[52]
1.96
Assuming that the measure pursues the stated objective in relation to
the right to privacy, outlined above, of achieving positive investigative
outcomes in relation to serious cases of exploitation and ensuring the lawful
payment of wages, there remain questions as to whether the measure is
rationally connected to and a proportionate means of achieving that objective.
1.97
The availability of use and derivative use immunities can be one
important factor in determining whether the limit on the right not to
incriminate oneself is proportionate. It is noted that partial use immunity
would be provided for criminal offences, meaning no information or documents
obtained under a FWO notice would be admissible in evidence in proceedings
subject to exceptions.[53]
However, no derivative use immunity is provided (which would prevent
information or evidence indirectly obtained from being used in criminal
proceedings against the person). The lack of a derivative use immunity raises
questions about whether the measure is the least rights restrictive way of
achieving its objective.
1.98
While not addressed in the statement of compatibility, the explanatory
memorandum provides some information as to why a derivative use immunity has
not been provided:
Provision of a derivative use immunity means that further
evidence obtained through a chain of inquiry resulting from the protected
evidence cannot be used in relevant proceedings, even if the additional
evidence would have been uncovered by the regulator through independent
investigation processes. A related issue is that it can be very difficult and
time-consuming in a complex investigation to prove whether evidence was
obtained as a consequence of the protected evidence or obtained independently.[54]
1.99
It is noted, however, that administrative difficulties, in and of
themselves, are unlikely to be a sufficient reason for not providing a
derivative use immunity, if this is otherwise a less rights restrictive way of
achieving the objective of the measure.
Committee comment
1.100
The preceding analysis raises questions about the compatibility
of the coercive information gathering powers in the bill with the right not to
incriminate oneself.
1.101
The statement of compatibility has not identified or addressed the
limitation on the right not to incriminate oneself. The committee therefore
seeks the advice of the Minister for Employment 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 for
the purposes of international human rights law;
-
how the measure is effective to achieve (that is, rationally connected
to) that objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective; and
-
whether a derivative use immunity could be included in
proposed section 713(3) to ensure information or evidence indirectly obtained
from a person compelled to answer questions or provide information or documents
under a FWO notice cannot be used in evidence against that person.
Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1)
Bill 2017
Purpose |
Seeks to amend various Acts
administered by the Prime Minister to update outdated provisions; repeal two
Acts; align annual reporting requirements of the Auditor-General with his or
her responsibility to the Parliament; and provide new powers to royal
commissions to require a person to provide information or a statement in
writing; and increases the penalty from six months' to two years'
imprisonment for failure of a witness to attend a royal commission |
Portfolio |
Indigenous Affairs |
Introduced |
House of Representatives, 30
March 2017 |
Rights |
Privacy; reputation; fair
trial; not to incriminate oneself (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.102
The Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1)
Bill 2017 (the bill) seeks to amend several provisions of the Royal
Commissions Act 1902 (RC Act). The committee has previously raised concerns
in relation to the powers of royal commissions as they affect a range of human
rights including the right to a fair trial, the right not to incriminate
oneself, the right to privacy and reputation, right to freedom of expression,
right to liberty and the right to freedom of assembly.[55]
Coercive powers of Royal Commissions—increased penalty for failing to attend
a Royal Commission as a witness
1.103
Section 3 of the RC Act provides that a person served with a summons to
appear as a witness before a royal commission shall not fail to attend unless
excused or released. The bill seeks to increase the maximum penalty for a
failure to attend from six months' imprisonment or a $1000 fine to two years'
imprisonment.
1.104
Section 6A(2) of the RC Act provides that a person appearing as a
witness is not excused from answering a question on the ground that the answer
might tend to incriminate that person.
Compatibility of the measure with the right not to
incriminate oneself
1.105
Specific guarantees of the right to a fair trial in the
determination of a criminal charge guaranteed by article 14 the
International Covenant on Civil and Political Rights (ICCPR) include
the right not to incriminate oneself (article 14(3)(g)).
1.106
The RC Act is designed to enable the establishment of
royal commissions with significant information gathering powers but not law
enforcement powers. Royal commissions have historically been established to
inquire into often complex and systemic issues that have thwarted traditional
law enforcement efforts. Accordingly, the investigative functions of a
royal commission sit, in part, outside the protections of the right to a fair
trial as a royal commission is not determining a criminal charge but
undertaking a broader examination of an issue.
1.107
However, the right to a fair trial, and more particularly the right not
to incriminate oneself, is directly relevant where a person is required to give
information to a royal commission which may incriminate themselves and that
incriminating information can be used either directly or indirectly by law
enforcement agencies to investigate criminal charges. By increasing the penalty
for a witness who fails to attend and give evidence to a royal commission in
circumstances where the witness will not be afforded the privilege against self‑incrimination,
the measure engages and limits the right not to incriminate oneself. Current
section 6P of the RC Act permits a royal commission to disclose evidence
relating to a contravention of a law to certain persons and bodies including
the police and the Director of Public Prosecutions (DPP) in these
circumstances.
1.108
While the right not to incriminate oneself may be subject
to permissible limitations in a range of circumstances, the statement of
compatibility does not acknowledge that this right is engaged and limited, so
does not provide an assessment as to whether the limitation is justifiable
under international human rights law.
1.109
The statement of compatibility briefly discusses the abrogation of the
right not to incriminate oneself (although without acknowledging the limitation
placed upon that right), and the availability of a 'use' immunity such that where a person has been required to give incriminating
evidence, that evidence cannot be used against the person in any civil or
criminal proceeding but may be used to obtain further evidence against the
person.[56]
1.110
The availability of immunities is relevant to whether a measure is a
proportionate limitation on the right not to incriminate oneself. However, it is noted that no 'derivative use' immunity is provided in
this case and this may be relevant to the question of whether the limitation is
proportionate.[57] This issue was not addressed in the statement of compatibility.
1.111
Furthermore, the statement of compatibility does not
acknowledge the committee's previous concerns, stated on a number of occasions,
with respect to related powers and the effect that strengthening these powers
may have.[58]
Committee comment
1.112
The statement of compatibility does not acknowledge that the
measure engages and limits the right not to incriminate oneself and therefore
does not provide an assessment of whether that limitation is justifiable. The
committee therefore seeks the advice of the Minister for Indigenous
Affairs as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective; and
-
whether a derivative use immunity would be workable.
Compatibility of the measure with
the right to privacy
1.113
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.114
By increasing the penalty for failure to appear as a witness and answer
questions, in circumstances where the witness is not afforded the privilege
against self-incrimination, the measure engages and limits the right to
privacy.
1.115
While the right to privacy may be subject to permissible limitations in
a range of circumstances, this particular limitation on the right to privacy
was not addressed in the statement of compatibility.
1.116
The statement of compatibility therefore does not meet the standards
outlined in the committee's Guidance Note 1, which require that, where a
limitation on a right is proposed, the statement of compatibility provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
Committee comment
1.117
The statement of compatibility has not identified or addressed
the limitation on the right to privacy imposed by the measure. The committee therefore
seeks the advice of the Minister for Indigenous
Affairs as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Coercive powers of Royal Commissions—Power to require person to give
information or statement in writing
1.118
The bill seeks to amend section 2(3B) of the RC Act to give a royal
commission the power to issue a notice requiring a person to give information
or a statement in writing.
1.119
Section 6A(1) of the RC Act provides that a person is not excused from
producing a document or other thing on the basis that it might incriminate that
person.
1.120
Section 6P of the RC Act provides that a royal commission is empowered
to disclose evidence relating to a contravention of the law to certain persons
and bodies including the police and the DPP.
Compatibility of the measure with
the right to privacy
1.121
As set out above, the right to privacy includes respect for
informational privacy, including the right to respect for private and
confidential information and the right to control the dissemination of
information about one's private life.
1.122
As the measure would provide powers for a royal commission to require, on
a compulsory basis, a person to give a written statement or written information
(including private and confidential information), the measure engages and
limits the right to privacy. It does so in circumstances where the
person providing the document is not afforded the privilege against
self-incrimination.[59]
1.123
Information provided under such powers may be disclosed to the police or
DPP under section 6P of the RC Act. By expanding the range of information that
may be compulsorily acquired and then subject to disclosure, the measure further
engages and limits the right to privacy.
1.124
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective, and be rationally
connected and proportionate to achieving that objective.
1.125
The statement of compatibility acknowledges that the measure engages and
limits the right to privacy but argues that the limitation is permissible on
the basis that:
The collection and use of that personal information is a
proportionate limitation of the right to privacy in pursuit of a legitimate
objective to ensure a Royal Commission can fully inquire into, and report on,
matters of public importance.[60]
1.126
In broad terms, ensuring that a royal commission can fully inquire into
matters of public importance is likely to be a legitimate objective for the
purposes of international human rights law. As noted above, royal commissions
have historically been established to inquire into often complex and systemic
issues that have thwarted traditional law enforcement efforts.
1.127
The compulsory provision of information is also likely to be rationally
connected to this objective as the collection of further
information may assist the royal commission's inquiry function. However,
the statement of compatibility has not demonstrated that the measure imposes a proportionate
limitation on the right to privacy in pursuit of that legitimate objective. In
particular, the statement of compatibility has provided no information about
why the measure is necessary to achieve the legitimate objective nor addressed
whether there are adequate safeguards in place with respect to the exercise of
this power.
1.128
Additionally, as noted above, the statement of
compatibility does not acknowledge the committee's previous concerns with
respect to related measures that expand existing powers.[61]
Committee comment
1.129
The committee therefore seeks the advice of the Minister for Indigenous Affairs as to whether the
limitation is a reasonable and proportionate measure to achieve the stated
objective (including the availability of less rights restrictive measures and
the existence of relevant safeguards).
Compatibility
of the measure with the right not to incriminate oneself
1.130
As set out above, article 14 of the ICPPR protects the right not to
incriminate oneself. The measure engages and limits this right as the
requirement to give information or a statement in writing applies regardless of
whether such information might incriminate the person.
1.131
It is noted in this respect that such information may be disclosed to
the police or DPP under existing powers.[62]
By expanding the range of information that may be compulsorily acquired and
then subject to disclosure, in circumstances where the person was
not afforded the privilege against self-incrimination, the measure
further engages and limits the right not to incriminate oneself.
1.132
The statement of compatibility does not acknowledge that
this right is engaged and limited so does not provide an assessment as to
whether the limitation is justifiable under international human rights law.
1.133
As set out above, the legitimate objective of the
measure appears to be 'to ensure a Royal Commission can fully inquire
into, and report on, matters of public importance'.[63] The measure
also appears to be rationally connected to this legitimate objective.
1.134
However, the statement of compatibility has not
demonstrated that the measure imposes a proportionate limitation on the right not
to incriminate oneself in pursuit of that legitimate objective. As set out
above at [1.110], the availability of immunities is relevant to whether
a measure is a proportionate limitation on the right not to incriminate
oneself. However, no 'derivative use' immunity is provided in the
RC Act and this may be relevant to the question of whether the limitation is
proportionate.
Committee comment
1.135
The statement of compatibility does not acknowledge that the
measure engages and limits the right not to incriminate oneself and therefore
does not provide an assessment of whether that limitation is justifiable. The
committee therefore seeks the advice of the Minister
for Indigenous Affairs as to:
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective; and
-
whether a derivative use immunity would be workable.
Compatibility of the coercive powers of royal commissions with multiple
rights
1.136
In addition to the right not to incriminate oneself and
the right to privacy, the committee has previously raised concerns in relation
to the powers of royal commissions including against the right to
reputation, the right to freedom of expression, the right to liberty and the
right to freedom of assembly on a number of occasions.[64] The statement of compatibility does not acknowledge or address the
committee's previous concerns with respect to related powers.
1.137
The Australian Law Reform Commission also identified a
number of human rights concerns in relation to royal commissions in its 2009
report, Making Inquiries: A statutory framework.[65]
1.138
The existing RC Act was legislated prior to the establishment of the
committee, and for that reason, has never been required to be subject to a
foundational human rights compatibility assessment in accordance with the terms
of the Human Rights (Parliamentary Scrutiny) Act 2011. A full human
rights assessment of proposed measures which extend or amend existing
legislation requires an assessment of how such measures interact with the
existing legislation. The committee is therefore faced with the difficult task
of assessing the human rights compatibility of amendments without the benefit
of a foundational human rights assessment of the RC Act from the Minister for
Indigenous Affairs.
Committee comment
1.139
The committee seeks the advice of the Minister
for Indigenous Affairs as to whether a foundational assessment of
the Royal Commissions Act 1902 could be undertaken to determine its
compatibility with human rights (including in respect of matters previously
raised by the committee).
Social Services Legislation Amendment Bill 2017
Purpose |
Contains a number of
reintroduced measures including extension of the ordinary waiting period to
persons claiming youth allowance (other) or parenting payments |
Portfolio |
Social Services |
Introduced |
Senate, 22 March 2017 |
Right |
Social security (see Appendix
2) |
Status |
Seeking additional
information |
Background
1.140
The Social Services Legislation Amendment Bill 2017 (the bill) contains
a number of reintroduced measures which have previously been examined by the
committee. The following schedules to the bill have previously been found to be
compatible with human rights:
-
Schedule 1—Indexation;[66]
-
Schedule 2—Automation of income stream review processes;[67]
and
-
Schedule 4—Family tax benefit.[68]
1.141
In relation to Schedule 3—Ordinary Waiting Periods, the committee
previously considered this measure in a number of reintroduced bills.[69]
In its Twelfth report of the 44th Parliament the committee concluded
that the measure, as well as a number of other measures contained in the bill,
was compatible with the right to social security and the right to an adequate
standard of living on the basis of budget constraints articulated at the time
constituting a legitimate objective for the purposes of international human
rights law.
1.142
The bill passed both Houses of Parliament on 29 March 2017 and received
Royal Assent on 12 April 2017.
Schedule 3—Ordinary Waiting Periods
1.143
Schedule 3 of the bill extends the ordinary waiting period to youth
allowance (other) and the parenting payment. The ordinary waiting period is a
one‑week period that new claimants must serve before they are able to
start accessing payments, and currently applies to recipients of newstart
allowance and sickness allowance. A number of exemptions and waivers are
available in certain circumstances, including for persons experiencing severe
financial hardship.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
1.144
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other economic, social and cultural rights, particularly the
right to an adequate standard of living and the right to health. The right to
an adequate standard of living requires state parties to take steps to ensure
the availability, adequacy and accessibility of food, clothing, water and
housing for all people in Australia, and also imposes on Australia the
obligations listed above in relation to the right to social security.
1.145
The committee has previously considered that the measure engages and
limits the right to social security and an adequate standard of living. This is
because, in imposing a waiting period for further recipients of social security
payments, the measure is a retrogressive measure or backward step for the
purposes of international human rights law.[70]
1.146
As noted above at [1.141], the committee concluded at that time that the
measures were likely to be compatible in the context of budgetary constraints
constituting a legitimate objective for the purposes of international human
rights law.[71]
1.147
As set out in the committee's Guidance Note 1, in order 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 statement of compatibility
does not explain how the measure still pursues the same pressing or substantial
concern of budgetary restraints as it did during the committee's consideration
of the measure more than two years ago.
1.148
The statement of compatibility sets out an objective of the measures as
'ensuring a sustainable and well-targeted payment system'.[72]
While this may be considered legitimate for the purposes of international human
rights law, a legitimate objective must be supported by a reasoned and
evidence-based explanation. No information is provided in the statement of
compatibility as to why the reforms are necessary from a fiscal perspective or
how the proposed measure will ensure the sustainability of the social welfare
scheme. Further, while some information is provided about emergency payments
where a person is unable to meet basic necessities during the waiting period,
it is noted that the qualifying criteria for these emergency payments is also
being tightened by the bill.[73]
In this context, it is unclear whether there will be persons who are left
without means of meeting basic necessities during the waiting period. The
availability of emergency payments will affect the proportionality of the
limitation.
Committee comment
1.149
The preceding analysis indicates that the right to social
security and right to an adequate standard of living are engaged and limited by
the measure. The above analysis raises questions as to whether the measure is a
permissible limitation on those rights.
1.150
The committee therefore seeks further advice from the Minister
for Social Services 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;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Compatibility of the measure with
the right to equality and non-discrimination (indirect discrimination)
1.151
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. As
women are the primary recipients of parenting payments, and social security
payments more broadly, reductions to access to such payments under the bill
would disproportionately impact upon this group and the right to equality and
non‑discrimination is therefore also engaged.
1.152
The statement of compatibility acknowledges the engagement of this
right, and sets out that:
As more than 90 per cent of parenting payment recipients are
women, the changes may more significantly impact on women in that regard.
However, the changes are reasonable and proportionate to achieving the
legitimate objective of providing consistency across similar working age
payments by ensuring that all new claimants meet their own living costs for a
short period before receiving Government assistance, where they are able.[74]
1.153
As noted above at [1.147], for the purposes of international human
rights law a legitimate objective must address a pressing or substantial
concern, and not simply seek an outcome regarded as desirable or convenient. It
has not been set out in the statement of compatibility why 'providing
consistency across payments' is a legitimate objective, or why it is necessary
to extend the ordinary waiting period to recipients of further social security
payments at this time.
Committee comment
1.154
The right to equality and non-discrimination (indirect
discrimination) is engaged and limited by the measure by reason of its
particular impact on women. The above analysis raises questions as to whether
the measure is a permissible limitation on those rights.
1.155
The committee therefore seeks further advice from the Minister
for Social Services 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;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Treasury Laws Amendment (2017 Measures No. 1) Bill 2017
Purpose |
Amends the Income
Tax Assessment Act 1997 to ensure that investors who invest through
an interposed trust are able to access the certain capital gain concessions; and
the Australian Securities and Investments Commission Act 2001 to
specify that the sharing of confidential information by the Australian
Securities and Investments Commission with the Commissioner of Taxation is
authorised use and disclosure of that information |
Portfolio |
Treasury |
Introduced |
House of Representatives,
16 February 2017 |
Right |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.156
The bill passed both Houses of Parliament on 27 March 2017.
Sharing of confidential information with the Commissioner of Taxation
1.157
Schedule 2 of the Treasury Laws Amendment (2017 Measures No. 1) Bill
2017 (the bill) amended subsection 127(2A) of the Australian Securities and
Investments Commission Act 2001 (ASIC Act) to allow the Australian
Securities and Investments Commission (ASIC) to share confidential information
with the Commissioner for Taxation (commissioner) without first needing to be
satisfied that doing so would enable or assist the commissioner to perform or
exercise their functions or powers.
Compatibility of the measure with
the right to privacy
1.158
The right to privacy encompasses respect for informational privacy,
including the right to respect for private information and private life,
particularly the storing, use and sharing of personal and confidential
information.
1.159
Schedule 2 of the bill engages and limits the right to privacy by
allowing ASIC to share confidential information with the commissioner. The
right to privacy may be subject to permissible limitations where it pursues a
legitimate objective, is rationally connected to, and proportionate to
achieving, that objective.
1.160
The statement of compatibility recognises that the right to privacy is engaged,
but explains the measure as follows:
The amendment to the process for ASIC to share information
with the Commissioner of Taxation mirrors the existing power for the
Commissioner of Taxation to share confidential information with ASIC under
Division 355 of Schedule 1 to the Taxation Administration Act 1953.
Mirroring the information sharing process between ASIC and the Commissioner of
Taxation will enable effective and timely collaboration during investigations
into illegal and high risk activities. The amendment is a reasonable change as
it will allow ASIC and the Commissioner of Taxation to more effectively work
together to ensure compliance with corporate and taxation laws.
Furthermore, the amendment is appropriate as it will ensure
that the process for ASIC to share confidential information with the
Commissioner of Taxation is consistent with the process for ASIC to share
confidential information with the Reserve Bank of Australia, the Australian
Prudential Regulation Authority and the relevant Minister.
...A simpler and more efficient information sharing arrangement
between ASIC and the Commissioner of Taxation is justified as it will benefit
the community by enabling better monitoring of illegal and other high-risk
activities by the Commissioner of Taxation and strengthen corporate compliance
with taxation law.[75]
1.161
Under the existing law, the ASIC may share confidential information with
the commissioner if the ASIC is satisfied that the information will enable or
assist the commissioner to perform or exercise their functions or powers. This
approach would appear to have allowed for the sharing of confidential
information in fairly broad terms.
1.162
The objective of the measure appears to be to enable the commissioner to
'conduct timely compliance activity and better protect the integrity of
Australia's tax system'.[76]
While this objective may be legitimate for the purposes of international human
rights law, the statement of compatibility does not provide information to
demonstrate how the existing law was not sufficiently simple or effective. It
is therefore unclear whether the limitation on the right to privacy is
proportionate to the stated objective; in particular, it is unclear whether the
measure is the least rights restrictive approach to achieving the objective of
the measure. In order to be a permissible limit on the right to privacy,
regimes that permit the disclosure of personal and confidential information
need to be sufficiently circumscribed. Disclosure of information should be
restricted to that private and confidential information which is strictly
necessary to achieve the stated objective of the measure.
1.163
The removal of the requirement for there to be an assessment by ASIC
that sharing confidential information would enable or assist the commissioner
to fulfil their functions raises the concern that the measure may not be
sufficiently circumscribed. The statement of compatibility does not explain why
such an assessment is not required, or is inappropriate.
1.164
Nor does the statement of compatibility identify whether sufficient
safeguards are in place to ensure that the unnecessary sharing of personal or
confidential information will not have an adverse effect on individuals whose
information has been shared. The assessment previously required by ASIC may
have assisted to ensure that only necessary sharing of information took place.
The statement of compatibility identifies safeguards which remain under the
proposed legislation, including restrictions on the scope of information that
can be requested by the commissioner, and Division 355 of Schedule 1 to the Taxation
Administration Act 1953, which makes the unauthorised disclosure of
confidential information an offence. However, these safeguards alone do not
appear to be sufficient to demonstrate that the limitation on the right to
privacy is proportionate in light of the concerns raised above.
Committee comment
1.165
The right to privacy is engaged and limited by the ability for the Australian
Securities and Investments Commission to share confidential information with
the Commissioner for Taxation without first needing to be satisfied that doing
so would enable or assist the Commissioner for Taxation to perform or exercise
their functions or powers. The preceding analysis raises questions as to
whether the measure is a proportionate limit on the right to privacy including
whether there are the less rights restrictive ways to achieve the stated objective
of the measure.
1.166
Accordingly, the committee requests the advice of the Treasurer as to whether:
-
there are less rights restrictive ways to achieve the objective
of the measure; and
-
there are safeguards in place to demonstrate that the limitation
on the right to privacy is proportionate to the objective sought to be achieved.
Advice only
1.167
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Banking and Financial Services Commission of Inquiry Bill 2017
Purpose |
Seeks to establish a
parliamentary inquiry into the banking and financial services sector that
reports to Parliament on particular matters |
Sponsors |
Senators Whish-Wilson,
Hanson, Hinch, Lambie, Roberts and Xenophon |
Introduced |
Senate, 23 March 2017 |
Rights |
Fair hearing; not to
incriminate oneself; privacy; freedom of expression; freedom of assembly (see
Appendix 2) |
Status |
Advice only |
Requirement to provide evidence in circumstances where the privilege
against self-incrimination is not provided
1.168
The Banking and Financial Services Commission of Inquiry Bill 2017 (the
bill) seeks to establish a Parliamentary Commission of Inquiry (Commission)
into the banking and financial services sector. Part 3 of the bill would confer
wide powers on the Commission to inquire into and report to the Parliament in
relation to the banking and financial services industry. These powers include
summoning witnesses and requiring witnesses to answer questions or provide
documents or things, powers of arrest and powers to issue search warrants.
1.169
Proposed section 17 creates an offence of failure by witnesses to attend
a hearing or produce documents, which is subject to a penalty of imprisonment
for six months. Section 33 permits the Commission to disclose information or
evidence relating to a contravention of a law to certain persons and bodies
including the police.
Compatibility of the measure with
the right to not to incriminate oneself
1.170
Specific guarantees of the right to a fair trial in the
determination of a criminal charge, guaranteed by article 14 the
International Covenant on Civil and Political Rights (ICCPR),
include the right not to incriminate oneself (article 14(3)(g)).
1.171
Requiring a witness to answer questions even if it may incriminate them
engages and limits the right not to incriminate oneself. This right may be
subject to permissible limitations where the measure pursues a legitimate
objective, and is rationally connected to, and proportionate to achieving, that
objective. However, the statement of compatibility does not address this
limitation on the right not to incriminate oneself.
1.172
Additionally, the bill does not appear to provide any use or derivative
use immunity in relation to self-incriminating evidence. Use and derivative use
immunities prevent compulsorily disclosed information (or anything obtained as
an indirect consequence of making a compulsory disclosure) from being used in
evidence against a witness.[77]
The inclusion of use and derivative use immunities is relevant to an assessment
of the proportionality of any measure that limits the right not to incriminate
oneself.
Compatibility of the measure with
the right to privacy
1.173
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.174
By creating an offence for failure to appear as a witness and answer
questions, the measure engages and limits the right to privacy. While the right
to privacy may be subject to permissible limitations in a range of
circumstances, this particular limitation on the right to privacy was not
addressed in the statement of compatibility.
1.175
The statement of compatibility therefore does not meet the standards
outlined in the committee's Guidance Note 1, which require that, where a
limitation on a right is proposed, the statement of compatibility provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
Contempt of Commission
1.176
Proposed section 26 of the bill provides that a person commits an
offence if they:
-
wilfully disturb or disrupt a hearing of the Commission;
-
make any statement that is false or defamatory of the Commission;
or
-
commit any wilful contempt of the Commission.
1.177
The penalty for the offence is imprisonment for up to 12 months.
Compatibility of the measure with
the right to freedom of expression and the right to freedom of assembly
1.178
The right to freedom of expression requires the state not to arbitrarily
interfere with freedom of expression, particularly restrictions on political
debate. It protects all forms of expression and the means of their
dissemination, including spoken, written and sign language and non-verbal
expression. The right to peaceful assembly is the right of people to gather as
a group for a specific purpose.
1.179
Prohibiting any wilful disturbance or disruption of a hearing of the
Commission engages and may limit the right to freedom of expression and the
right to freedom of assembly. These rights may be subject to permissible
limitations where the measure pursues a legitimate objective, is rationally
connected to, and proportionate to achieving, that objective. However, the
statement of compatibility does not provide any analysis or justification for
the limitation on the freedom of expression and the right to freedom of
assembly. The statement of compatibility therefore does not meet the standards
outlined in the committee's Guidance Note 1, set out in paragraph [1.8]
above.
1.180
It is not clear whether the restriction imposed may have the effect of
criminalising forms of expression and assembly, for example, a demonstration
organised by persons to protest against what they consider as the excessive or
inappropriate use of the powers of the Commission or other matters relating to
the work of the Commission. As currently drafted, there may be a danger that
the provisions may limit legitimate criticism of, or objection to, the
Commission and its activities and may be overly broad.
Issue of arrest warrants by the Commission
1.181
Proposed section 12 of the bill provides that if a person served with a
summons to attend before the Commission as a witness fails to attend in
accordance with the summons, the member of the Commission may issue a warrant
to arrest the person.
1.182
This warrant authorises the arrest of the witness, the bringing of the
witness before the Commission and the detention of the witness in custody for
that purpose until the witness is released by order of the member of the
Commission. Proposed section 13 enables the Commission to issue search
warrants.
Compatibility of the measure with the
right to liberty
1.183
The right to liberty, which prohibits 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.
1.184
Empowering the Commission to issue arrest warrants and to authorise the
detention of a witness, rather than requiring application to a court, engages
and limits the right to liberty.
1.185
The statement of compatibility does not provide an assessment of how
this measure engages and limits the right to liberty. The statement of
compatibility therefore does not meet the standards outlined in the committee's
Guidance Note 1, set out in paragraph [1.175] above.
1.186
It is noted that, while the Royal Commissions Act 1902 (RC Act)
provides a power for royal commissions to issue arrest warrants, the
committee has previously raised human rights concerns in relation to these
powers.[78]
Issue of search warrants by the Commission
1.187
Proposed section 13 would enable the Commission to issue search
warrants.
Compatibility of the measure with the
right to privacy
1.188
The right to privacy prohibits arbitrary or unlawful interferences with
an individual's privacy, family, correspondence or home. The power of the
Commission to issue search and entry warrants engages and limits the right to
privacy. The statement of compatibility does not provide an assessment of how
this measure engages and limits the right to privacy.
1.189
The statement of compatibility therefore does not meet the standards
outlined in the committee's Guidance Note 1, set out in paragraph [1.175]
above.
1.190
It is noted that the RC Act does not contain a power equivalent to that
in proposed section 13 of the bill to issue search warrants. Rather, royal
commissions or their members may apply to a judge of a prescribed court for the
issue of a search warrant.[79]
This indicates that the power may be broader than is necessary.
Committee comment
1.191
Noting the human rights concerns raised by the bill, the
committee draws the human rights implications of the bill to the attention of the
legislation proponents and the Parliament.
1.192
If the bill proceeds to further stages of debate, the committee
may request further information from the legislation proponents.
Criminal Code Amendment (Prohibition of Full Face Coverings in Public
Places) Bill 2017
Purpose |
Seeks to amend the Criminal
Code Act 1995 to prohibit the wearing of full face coverings in public
places under the jurisdiction of the Commonwealth if the threat level under
the National Terrorism Threat Advisory System is higher than 'possible' |
Sponsor |
Senator Lambie |
Introduced |
Senate, 8 February 2017 |
Rights |
Freedom of thought and
religion; equality and non‑discrimination (see Appendix 2) |
Status |
Advice only |
Prohibition on wearing face coverings
1.193
The Criminal Code Amendment (Prohibition of Full Face Coverings in
Public Places) Bill 2017 (the bill) seeks to create a new Part 9.10 in the Criminal
Code Act 1995 (the Criminal Code) to make unlawful the wearing of full
face coverings in public places which are under the jurisdiction of the
Commonwealth if the threat level under the National Terrorism Threat Advisory
System is higher than 'possible'. Proposed Part 9.10 also creates an offence if
a person compels another person to wear a full face covering in a public place,
which is subject to imprisonment for six months or 200 penalty units (or
imprisonment for 12 months or 400 penalty units if the other person is under
18).
1.194
A 'public place' is defined in the bill as any place to which the public
has access as of right or by invitation, and includes the interior of a vehicle
that is in a public place. It does not include a place of worship, or a place
where a marriage or civil ceremony is being held.
1.195
Certain exemptions would apply to persons who are wearing a full face
covering for prescribed purposes including in relation to their occupation; for
safety reasons; for participation in recreational or sporting activities; or
for a genuine artistic purpose.
Compatibility of the measure with
the right to freedom of thought and religion
1.196
The right to exercise one's religious or other belief or opinion includes
the freedom to exercise religion or belief publicly or privately, alone or with
others (including through wearing religious dress). The right to exercise one's
belief can be limited given its potential impact on others. The right can be
limited as long as it can be demonstrated that the limitation is reasonable and
proportionate and is necessary to protect public safety, order, health or morals
or the rights of others (as a legitimate objective).
1.197
By prohibiting the wearing of full face coverings in public places, the
bill engages and may limit the right to freedom of thought and religion, as
certain individuals may wear this form of dress as a religious practice, that
is, in the exercise of religious belief.
1.198
The statement of compatibility acknowledges that religious freedoms may
be impacted by the measures, and sets out the purpose of the bill as to
increase national security and public safety. While national security and
public safety may be considered a legitimate objective for the purposes of international
human rights law, it is not clear how the measures would be effective to
achieve, or a proportionate means of achieving, this objective.
1.199
No evidence is provided in the statement of compatibility as to how the
introduction of the new offences will enhance public safety or prevent the
occurrence of violent acts which threaten national security. Further, no
information has been provided which links the wearing of full face coverings to
the carrying out of violent acts, or any occasions where such acts have
occurred in Australia which may indicate that the wearing of face coverings
could constitute a substantial threat to public safety. The statement of
compatibility notes that:
When people have the intention of committing a crime, in many
cases, they attempt to conceal their identity so they have the best chance of
evading the law.[80]
1.200
It is noted that there may be many ways in which a person can conceal
their identity, including, but not limited to, the wearing of a full face
covering. It is not explained why full face coverings alone must be the subject
of such provisions aimed at preventing the concealment of one's identity.
1.201
Even if the measure were effective to achieve its stated objective,
concerns arise as to whether the measure is a proportionate limit on freedom of
thought and religion. To criminalise the wearing of religious dress in public
is a serious limitation on the exercise of religious belief. While there are a
number of prescribed exemptions for persons wearing a full face covering in certain
circumstances, it is noted that none of these exemptions apply for the purposes
of genuine religious belief. It is noted that in order to be a proportionate
limitation on human rights a measure must be the least rights restrictive way
of achieving its stated objective.
1.202
Further, the scope of the offence is not readily apparent from the
offence provision. Under proposed section 395.2 an offence would only exist
once the minister has made, by legislative instrument, a declaration stating
that the national security threat level has been raised. It does not seem
reasonable to expect members of the public to monitor the making of such
declarations in order to know when their wearing of a full face covering may or
may not be prohibited. This proposed section imposes a significant burden on
persons who may choose to wear face coverings on a regular basis for religious
purposes. The Senate Committee for the Scrutiny of Bills has previously
commented on this provision and noted that it 'is desirable for the content of
an offence to be clear from the offence provision itself, so that the scope and
effect of the offence is clear so those who are subject to the offence may
readily ascertain their obligations'.[81]
Having clear, accessible and precise legislative provisions, so that people
know the legal consequences of their actions, is also an important principle of
international human rights law.
Compatibility of the measure with
the right to equality and non-discrimination
1.203
The right to equality and non-discrimination is protected by articles 2
and 26 of the ICCPR (see Appendix 2). 'Discrimination' under the ICCPR
encompasses measures that have a discriminatory intent (direct discrimination)
and measures which have a discriminatory effect on the enjoyment of rights
(indirect discrimination).[82]
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 protected
attribute (for example, race, sex or religion).[83]
1.204
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. As a
large number of the persons affected by the proposed measures would be women from
religious backgrounds, and Muslim backgrounds in particular, the measure would
appear to disproportionately impact on this group, thereby engaging the right
to equality and non‑discrimination.
1.205
The statement of compatibility does not acknowledge that the right to
equality and non-discrimination is engaged by the measures. The statement of
compatibility therefore does not meet the standards outlined in the committee's
Guidance Note 1, which requires that, where a limitation on a right is
proposed, the statement of compatibility provide a reasoned and evidence-based
assessment of how the measure pursues a legitimate objective, is rationally
connected to that objective, and is proportionate.
Committee comment
1.206
The committee draws the human rights implications of the bill in
respect of the right to freedom of thought and religion and the right to
equality and non‑discrimination to the attention of the legislation
proponent and the Parliament.
1.207
If the bill proceeds to further stages of debate, the committee
may request further information from the legislation proponent with respect to
the right to freedom of thought and religion and the right to equality and non‑discrimination.
Human Rights Legislation Amendment Bill 2017
Purpose |
Previously sought to amend
section 18C of the Racial Discrimination Act 1975 to replace the words
'offend', 'insult' and 'humiliate' with 'harass' (resulting in the
formulation 'harass or intimidate'), and provide that an assessment of
whether an act is reasonably likely to harass or intimidate a person or group
of persons is made against the standard of a reasonable member of the
Australian community; Amends the Australian
Human Rights Commission Act 1986 to introduce a number of changes to the
process for how the Australian Human Rights Commission handles complaints of
unlawful discrimination and the ability of a person alleging unlawful
discrimination to apply to court |
Portfolio |
Attorney-General |
Introduced |
Senate, 22 March 2017 |
Rights |
Freedom of expression;
equality and non-discrimination; freedom from serious forms of discriminatory
speech; effective remedy (see Appendix 2) |
Status |
Advice only |
Background
1.208
On 8 November 2016, pursuant to section 7(c) of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Attorney-General referred to the
Parliamentary Joint Committee on Human Rights the following matters for inquiry
and report:
-
whether the operation of Part IIA of the Racial Discrimination
Act 1975 (RDA) (Cth) (including sections 18C and 18D) impose unreasonable
restrictions on freedom of speech; and
-
whether the complaints-handling procedures of the Australian
Human Rights Commission (AHRC) should be reformed.
1.209
The committee approached this inquiry broadly by looking at a range of
policy matters in relation to these terms of reference rather than approaching
it as a technical scrutiny inquiry.
1.210
The committee received approximately 11 500 items, including approximately
10 600 form letters; 418 items accepted by the committee as submissions
and published; and approximately 450 items accepted by the committee as
correspondence.
1.211
The committee also held nine public hearings from 12 December 2016
through to 20 February 2017: two in Canberra, and one in every other state and
territory capital city.
1.212
The committee tabled its final report, Freedom of speech in
Australia: Inquiry into the operation of Part IIA of the Racial
Discrimination Act 1975 (Cth) and related procedures under the Australian
Human Rights Commission Act 1986 (Cth), on 28 February 2017.[84]
1.213
Some of the matters in this bill relate to issues raised in the course
of the committee's inquiry and the committee's final report including its
recommendations.
1.214
The committee's scrutiny of the Human Rights Legislation Amendment
Bill 2017 (the bill) below is undertaken as a technical assessment of the compatibility
of the bill with seven core international human rights treaties and in
accordance with its functions under section 7(a) of the Human Rights
(Parliamentary Scrutiny) Act 2011.
1.215
The bill (subject to amendment) finally passed both Houses of Parliament
on 31 March 2017 and received Royal Assent on 12 April 2017.
Proposed amendment to conduct prohibited under section 18C of the RDA
1.216
Currently section 18C(1) of the RDA provides that it is unlawful for a
person to do an act, otherwise than in private, if:
- the act is reasonably likely, in all the circumstances, to offend,
insult, humiliate or intimidate another person or a group of people;
-
the act is done because of the race, colour or national or ethnic origin
of the other person or of some or all of the people in the group.[85]
1.217
Schedule 1 of the bill sought to remove the words 'offend', 'insult' and
'humiliate' from section 18C(1)(a) of the RDA and replace them with 'harass'.[86]
1.218
Schedule 1 of the bill further sought to amend the test, as judicially interpreted,
of whether an act is 'reasonably likely, in all the circumstances' to have the
specified effect. The bill sought to provide that an assessment of whether an
act is reasonably likely to harass or intimidate a person or group of people
should be made against the standard of a reasonable member of the Australian
community, rather than a reasonable member of the targeted group.[87]
1.219
Amendments were successfully moved in the Senate to remove Schedule 1
(containing these amendments) from the bill. The bill ultimately passed both
Houses of Parliament without the proposed changes to section 18C.
Right to freedom of expression and the right to be free from serious forms
of discriminatory expression
1.220
The proposed amendment to section 18C raised Australia's obligations to
protect freedom of expression and its obligations to protect against racial
discrimination, including incitement to racial hatred.
1.221
In order to assess the human rights implications of the proposed
amendment to section 18C of the RDA, it is therefore necessary to understand
the scope of Australia's obligations under international law, the balance
struck by the current law, and the manner and the extent to which the bill
proposes to alter that balance.
Right to freedom of expression
1.222
The International Covenant on Civil and Political Rights (ICCPR) and the
International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), place obligations on States in relation to the right to
freedom of expression (or freedom of speech) and the right to be free from
racial discrimination, including racial 'hate speech' or serious forms of
racially discriminatory speech.[88]
1.223
The right to freedom of opinion and expression is protected by article
19 of the ICCPR. The right to freedom of opinion is the right to hold
opinions without interference and cannot be subject to any exception,
restriction or limitation.[89]
1.224
The right to freedom of expression extends to the communication
of information or ideas through any medium, including written and oral communications,
the media, public protest, broadcasting, artistic works and commercial
advertising.[90]
The right may be subject to limitations, and is subject to specific parameters
(discussed further below).
1.225
The United Nations (UN) Human Rights Council has emphasised the
importance of the right to freedom of expression:
The exercise of the right to freedom of opinion and
expression is one of the essential foundations of a democratic society, is
enabled by a democratic environment, which offers, inter alia, guarantees for
its protection, is essential to full and effective participation in a free and
democratic society, and is instrumental to the development and strengthening of
effective democratic systems.[91]
1.226
Article 19(3) of the ICCPR provides that the exercise of the right to
freedom of expression 'carries with it special duties and responsibilities' and
the right to freedom of expression may be subject to limitations that are
necessary to protect the rights or reputations of others, national security,
public order (ordre public),[92]
or public health or morals. In order for a limitation to be permissible under
international human rights law, limitations must:
-
be prescribed by law;
-
pursue a legitimate objective;
-
be rationally connected to the achievement of that objective; and
-
be a proportionate means of achieving that objective.[93]
The right to freedom from
discrimination and compulsory limitations on the right to freedom of expression
1.227
Under article 20(2) of the ICCPR, parties to the treaty are required to
prohibit by law 'any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence'. Additionally,
parties to the treaty are required under article 26 of the ICCPR to prohibit,
and provide effective protection against, discrimination on grounds including
race, colour and national origin.
1.228
Article 4(a) of the CERD requires states to:
declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred, incitement to racial discrimination,
as well as all acts of violence or incitement to such acts against any race or
group of persons of another colour or ethnic origin...'[94]
1.229
The provisions contained in articles 20(2) of the ICCPR and article 4 of
the CERD (commonly referred to as racial 'hate speech' provisions),[95]
are understood as constituting compulsory limitations on the right to freedom
of expression.[96]
As noted by the UN Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, such 'very specific limitations are
legitimate if they are necessary in order for [the signatory to the treaty]...to
fulfil an obligation to prohibit certain expressions on the grounds that they
cause serious injury to the human rights of others.'[97]
1.230
The UN Committee on the Elimination of Racial Discrimination (UNCERD),
the treaty monitoring body established under the CERD, has consistently held
that article 4 of the CERD requires comprehensive legislative action to
implement its terms:[98]
As a minimum requirement, and without prejudice to further
measures, comprehensive legislation against racial discrimination, including
civil and administrative law as well as criminal law, is indispensable to
combating racist hate speech effectively.[99]
1.231
The UNCERD also noted that the prohibition on 'hate speech' is integral
to the elimination of racial discrimination in all of its forms.[100]
In relation to article 4 of the CERD, the UNCERD has recommended that parties
to the treaty should:
declare and effectively sanction as offences punishable by
law:
- All dissemination of ideas based
on racial or ethnic superiority or hatred, by whatever means;
-
Incitement to hatred, contempt or
discrimination against members of a group on grounds of their race, colour,
descent, or national or ethnic origin;
-
Threats or incitement to violence
against persons or groups on the grounds in (b) above;
-
Expression of insults, ridicule or
slander of persons or groups or justification of hatred, contempt or
discrimination on the grounds in (b) above, when it clearly amounts to
incitement to hatred or discrimination;
-
Participation in organizations and
activities which promote and incite racial discrimination.[101]
1.232
It is clear that there is some latitude between the acts which are
protected under article 19(2) of the ICCPR, and those acts which are required
to be prohibited under article 4(a) of CERD, and articles 20(2) and 26 of
the ICCPR set out above. In other words, there is legitimate scope for
Australia to determine the appropriate balance between the obligation to provide
protections against serious forms of discriminatory speech and the right to
freedom of expression.
Background to, and enactment of,
Part IIA of the RDA
1.233
Protection against forms of discriminatory speech on the basis of race
were introduced into Part IIA of the RDA in 1995 through the passage of the
Racial Hatred Bill 1994 (Racial Hatred Bill).
1.234
The introduction of such legislative protections against certain forms
of racially discriminatory speech was informed by recommendations and findings
by a number of significant inquiries which had identified gaps in legal
protections available to victims of racism.[102]
1.235
The introduction of such legislative protections was also informed by
Australia's obligations under the ICCPR and the CERD which, as set out above,
impose specific obligations on states to prohibit certain serious forms of
racially discriminatory expression.[103]
Australia ratified the CERD and the ICCPR in 1975 and 1980 respectively.[104]
1.236
The explanatory memorandum to the Racial Hatred Bill 1994 (EM 1994)
explained that the Racial Hatred Bill was intended to support social cohesion
and close a gap in legal protection for victims of racist speech which had been
identified by significant inquiries:
The Bill closes a gap in the legal protection available to the
victims of extreme racist behaviour. The Bill is intended to strengthen and
support the significant degree of social cohesion demonstrated by the
Australian community at large. The Bill is based on the principle that no
person in Australia need live in fear because of his or her race, colour, or
national or ethnic origin.[105]
1.237
While acknowledging the importance of freedom of speech, the 1994 EM
states that 'the right to free speech must be balanced against other rights and
interests.'[106]
1.238
The 1994 EM further states that the provisions now contained in Part IIA
of the RDA were intended to provide a balance between freedom of speech and the
protection of individuals and groups from harassment and fear because of their
race, colour or national or ethnic origin.[107]
The 1994 EM noted that the drafting of the bill was intended to allow scope for
public debate about important issues:
...not intended to
limit public debate about issues that are in the public interest. It is not
intended to prohibit people from having and expressing ideas. The Bill does not
apply to statements made during a private conversation or within the confines
of a private home.
The Bill maintains a
balance between the right to free speech and the protection of individuals and
groups from harassment and fear because of their race, colour or national or
ethnic origin.
The Bill is intended to prevent people
from seriously undermining tolerance within society by inciting racial hatred
or threatening violence against individuals or groups because of their race,
colour or national or ethnic origin.[108]
1.239
Part IIA of the RDA has remained in the same form since the passage of
the Racial Hatred Bill in 1995.
Scope of Part IIA of the RDA
1.240
At the federal level, Part IIA of the RDA is the legislative protection
against racial vilification. Part IIA (comprising sections 18A – 18E) of the
RDA provides the framework for protecting against forms of expression on the
basis of race.
1.241
As set out above, section 18C of the RDA contains the operative provision
making specified conduct unlawful, as a civil wrong. It provides:
- It is unlawful for a person to do an act, otherwise than
in private, if:
- the act is reasonably likely,
in all the circumstances, to offend, insult, humiliate or intimidate another
person or a group of people; and
- the act is done because of the
race, colour or national or ethnic origin of the other person or of some or all
of the people in the group.
1.242
The scope of section 18C cannot be understood without consideration of
section 18D. Section 18D operates to provide some 'exemptions' or defences from
section 18C of the RDA. Section 18D of the RDA provides:
Section 18C does not render unlawful anything said or done
reasonably and in good faith:
- in the performance, exhibition
or distribution of an artistic work; or
- in the course of any
statement, publication, discussion or debate made or held for any genuine
academic, artistic or scientific purpose or any other genuine purpose in the
public interest; or
- in making or publishing:
- a fair and accurate report of
any event or matter of public interest; or
- a fair comment on any event
or matter of public interest if the comment is an expression of a genuine
belief held by the person making the comment.
Meaning and scope of conduct
caught
1.243
The meaning and scope of section 18C of the RDA has been the subject of
judicial consideration. While the need for statutory interpretation is
unremarkable in itself, in this instance the interpretation given to section
18C plays a significant role because in general usage the words 'insult' and
'offend' may be employed in relation to conduct with effects that range from
severe to slight.
Legal meaning of 'offend, insult,
humiliate or intimidate'
1.244
The judicial interpretation of section 18C has commonly treated the
terms 'offend, insult, humiliate or intimidate' in a collective manner rather
than defining the words separately. Judicial interpretation has also read 18C
together with the title of Part IIA ('Prohibition of offensive behaviour based
on racial hatred') and in light of Australia's international obligations.[109]
Kiefel J,[110]
in Creek v Cairns Post,[111]
held that section 18C applies only to conduct having 'profound and serious
effects, not to be likened to mere slights'.[112]
This standard has been affirmed in a series of cases.[113]
1.245
Therefore, the meaning that has been given to the composite phrase in
section 18C by the courts is narrower than the broader meaning that the
individual words may carry in general speech, such that section 18C captures
only more serious forms of conduct engaged in on the basis of the subject's
race.
Nature of the test
1.246
Under section 18C of the RDA the conduct complained of must be
'reasonably likely, in all the circumstances, to offend, insult, humiliate or
intimidate'.[114]
This has been judicially interpreted as importing an 'objective test' rather
than 'subjective test' in relation to conduct.[115]
It means that the determinative question is not whether subjectively the
particular complainant was 'insulted, offended, intimidated or humiliated'. The
question is whether the act was reasonably likely to have a 'profound and
serious effect', in all the circumstances.
1.247
The form of the objective test that has been applied by the courts in
the context of section 18C of the RDA is one in which the 'reasonable person'
has the relevant racial or ethnic characteristics of the particular
complainant, that is, the test requires assessing the likely effect of the
conduct on a reasonable hypothetical member of a particular racial or ethnic
group which is the target of the alleged conduct.[116]
Application to public conduct
1.248
Part IIA only applies to conduct 'otherwise than in private'. This means
that there is no prohibition on expressing views that 'offend, insult,
humiliate or intimidate' on the basis of race, colour or national or ethnic
origin in private. Nor is there any prohibition on holding opinions on these
grounds.[117]
The right to hold opinions is therefore not engaged or limited by Part IIA of
the RDA.
Defences
1.249
As set out above, section 18D of the RDA contains a number of defences
or 'exemptions' to conduct that would otherwise be captured by section 18C of
the RDA. These exemptions cover acts done 'reasonably and in good faith.' It
includes artistic works, statements made for any genuine academic, artistic or
scientific purpose or in the public interest. These 'exemptions' also extend to
publishing a fair and accurate report of any event or matter of public interest
or a fair comment on any event or matter of public interest if it is a genuine
belief held by the person making the comment.[118]
Civil-complaint based model
1.250
The model adopted at a federal level in Australia under the RDA is a
civil complaint‑based model rather than a criminal model. This means that
proceedings are initiated by individual complainants rather than the
government. If a respondent is found by the court to have engaged in unlawful
conduct under Part IIA they are liable only for civil remedies, rather than
subject to criminal sanctions. Further, prior to a matter proceeding to court,
an individual alleging unlawful discrimination under the RDA must go through
the Australian Human Rights Commission (AHRC) complaint handling process with
its focus on conciliated outcomes.[119]
This AHRC process must be terminated prior to a claim for unlawful
discrimination being able to be lodged in the Federal Court or Federal Circuit
Court and assessed on its merits.[120]
Courts will not grant remedies for unlawful discrimination unless the
plaintiff/complainant has first made a complaint to the AHRC and that complaint
with the AHRC has been terminated.[121]
Compatibility of Part IIA of the
RDA with human rights
1.251
Assessment of the proposed measure raises the preliminary issue of whether
Part IIA as enacted constitutes a permissible limit on the right to freedom of
expression. Applying the committee's usual analytical framework, in order for a
limitation to be permissible, limitations must be prescribed by law; pursue a
legitimate objective; be rationally connected to the achievement of that
objective; and be a proportionate means of achieving that objective.[122]
1.252
In the particular context of the regulation of serious forms of racially
discriminatory speech, as set out above, article 20(2) of the ICCPR and article
4(a) of the CERD constitute compulsory limits on the right to freedom of
expression that are not only permissible but required of State parties.
However, the form of Part IIA of the RDA does not directly reflect the wording
in these articles. Nor does it reflect the criminal sanctions that are
contemplated by these articles; Australia having adopted a civil rather than criminal
regime at the federal level.[123]
1.253
Also relevant to the permissible limits on freedom of expression, and
additional to the obligations on State parties to prohibit racial hate speech, are
the general obligations under the CERD and ICCPR regarding equality and
non-discrimination. For example, parties to the ICCPR are required, under
article 26 of the ICCPR, to prohibit, and provide effective protection against,
discrimination on grounds including race, colour and national origin. This may
include discriminatory expression.
1.254
In these circumstances, the existing formulation of the law is likely to
be compatible with Australia's international human rights obligations. It is
clear that Part IIA is aimed at pursuing the legitimate objective of protecting
the rights of people in respect of racial discrimination, which is contemplated
in the terms of the ICCPR itself as the basis for permissible limitation. The
following factors each support the conclusion that Part IIA constitutes a
proportionate limit on the right to freedom of expression in pursuit of this
objective:
- the limited application of section 18C to conduct 'otherwise than in
private';
-
the protection given to the freedom of expression in section 18D of the
RDA; [124]
-
the interpretation of section 18C as only applying to conduct that has 'profound
and serious effects' on the basis of race; and
-
the civil model of regulation, including conciliation, and the absence
of any criminal proceedings or penalties under the regime.
1.255
For completeness, it is noted that there is nothing in Part IIA of the
RDA that prevents persons from holding opinions and therefore the right to
freedom of opinion is not engaged and limited.
Compatibility of proposed amendment
to conduct prohibited under section 18C of the RDA with human rights
1.256
The statement of compatibility states that the bill 'promotes the right
to freedom of expression' by:
...removing the words 'offend', 'insult' and 'humiliate' from
section 18C, ensuring that the law does not unjustifiably prevent a person from
expressing opinions and genuine beliefs, even where controversial, because they
may merely offend, insult or humiliate another person or groups of people. [125]
1.257
The statement of compatibility further states that the amendments
continue to comply with Australia's obligations with respect to equality and
non‑discrimination:
The amendments
proposed by this Bill promote the rights of equality and non-discrimination.
Section 18C as amended prohibits acts that a reasonable member of the
Australian community would consider harasses or intimidates a person based on
their race, colour or national or ethnic origin. The Bill maintains and
provides civil protections against racial discrimination to ensure that all are
able to enjoy the equal realisation and exercise of their rights under the
ICCPR and CERD. The amendments in the Bill are directed towards the elimination
of racial discrimination as required by the ICCPR and CERD.
By redefining
the conduct which is prohibited, the Bill will not reduce protections against
racial vilification. Rather, the Bill will ensure that conduct which does not
constitute vilification, but merely offends the feelings of particular
individuals or groups, is not made unlawful. The new standard of 'harass or
intimidate' will more directly target the core concept of racial vilification,
protecting the rights of all persons to live free from fear of violence and
racial discrimination.[126]
1.258
The likely effect of the proposed amendments would be to reduce the scope
of unlawful speech or expression under the RDA.
1.259
Part IIA of the RDA implements important aspects of Australia's
obligations under the ICCPR and CERD with respect to the right to protection
from serious forms of discriminatory expression. However, under international
human rights law, there exists some latitude between the conduct which is
required to be prohibited under article 4(a) of the CERD and article 20(2) the
ICCPR and the level of protection or emphasis provided to the right to freedom
of expression under article 19(2) of the ICCPR. In other words, there is scope
for Australia to determine exactly how to formulate the appropriate balance
between the obligation to provide protections against serious forms of
discriminatory expression and the right to freedom of expression.
1.260
The committee canvassed major questions of policy including questions of
priorities and balance in its final report to its inquiry, Freedom of speech
in Australia: Inquiry into the operation of Part IIA of the Racial
Discrimination Act 1975 (Cth) and related procedures under the Australian
Human Rights Commission Act 1986 (Cth).[127]
1.261
In relation to the current bill, the bill was amended prior to passage
to remove proposed amendments to Part IIA of the RDA. Therefore the changes to
the RDA did not proceed.
Committee comment
1.262
The preceding analysis sets out Australia’s obligations under international
human rights law to respect the right to freedom of expression, alongside
obligations to protect and promote the right to equality and non‑discrimination
and prevent racial hate speech.
1.263
The proposed amendments to Part IIA of the RDA engage the right
to equality and non-discrimination and the right to freedom of expression.
1.264
The bill was amended prior to passage to remove proposed
amendments to Part IIA of the RDA.
1.265
The committee notes that its inquiry into freedom of speech in
Australia canvassed a range of policy matters in relation to Part IIA of the
RDA and refers to its previous report and recommendations.[128]
Changes to the Australian Human Rights Commission complaint handing
processes
1.266
Schedule 2 of the bill contains a number of changes to the Australian
Human Rights Commission's (AHRC) complaint handling processes and the ability
of a complainant alleging unlawful discrimination at a federal level to apply
to the Federal Court or the Federal Circuit Court. These amendments include:
-
introducing principles applicable to the AHRC's complaint
handling process including a requirement that the AHRC act fairly and
expeditiously;
-
a requirement for the AHRC to notify respondents;
-
raising the threshold for lodging a complaint by requiring that
it must be reasonably arguable that the alleged conduct constitutes unlawful
discrimination and by requiring a complainant to set out details as fully as
practicable;
-
providing the President of the AHRC greater power to terminate
complaints;
-
a requirement that where a complaint is terminated by the
President of the AHRC (subject to exceptions), the complainant will need to
seek the leave of the Federal Court or Federal Circuit Court prior to making an
application to that court in relation to the complaint; and
-
a requirement that a complainant be provided information about
costs that the court can award against a complainant.
1.267
It is noted that several of these process changes respond to the
recommendations listed in the committee's inquiry report into freedom of speech
in Australia.[129]
1.268
These process changes passed both Houses of Parliament on 31 March 2017
with amendments.
Compatibility of the measures with
the right to an effective remedy and the right to equality and
non-discrimination
1.269
Australia is required under the ICCPR to ensure that those who
experience racial and other forms of discrimination have access to effective
remedies (see Article 2). Article 6 of the CERD further provides that parties
to the treaty:
...shall assure to everyone within their jurisdiction effective
protection and remedies, through the competent national tribunals and other
State institutions, against any acts of racial discrimination which violate his
human rights and fundamental freedoms contrary to this Convention, as well as
the right to seek from such tribunals just and adequate reparation or
satisfaction for any damage suffered as a result of such discrimination.
1.270
Parties to the treaty are required to establish appropriate judicial and
administrative mechanisms for addressing claims of human rights violations
under domestic law.[130]
The Australian government currently meets its obligation to have effective and
meaningful mechanisms for those who have experienced racial discrimination and
other forms of discrimination to seek redress through the operation of the AHRC,
its complaints handling mechanism, and the ability to apply to the Federal
Court and the Federal Circuit Court following the AHRC processes.[131]
1.271
The UN Human Rights Committee, the treaty monitoring body for the ICCPR,
has explained that national human rights institutions such as the AHRC can also
have an important role in ensuring the right to an effective remedy:
Administrative mechanisms are particularly required to give
effect to the general obligation to investigate allegations of violations
promptly, thoroughly and effectively through independent and impartial bodies.
National human rights institutions, endowed with appropriate powers, can
contribute to this end.[132]
1.272
It is noted that the process reforms apply across all areas of
discrimination at a federal level and not only to complaints of racial
discrimination. If the reforms were likely to create barriers to bringing a
complaint or limit access to court processes, this would have implications for Australia’s
compliance with the right to an effective remedy.[133] Such measures could also
have implications for the right to equality and non-discrimination more broadly
to the extent that they operate to have a disproportionate negative effect on
people based on particular attributes, such as sex, age or disability.
1.273
Previously the complaint handling process with the AHRC needed to be
exhausted and terminated prior to a person being able to lodge a claim for
unlawful discrimination under the RDA and or other federal anti-discrimination
law in the Federal Court or Federal Circuit Court. However, the ground upon
which the AHRC terminated the complaint did not affect whether or not a
complainant could seek to apply to the Federal Court to have the merits of
their claim assessed.[134]
1.274
The bill, at the time of first reading, proposed to introduce a requirement
that leave of the court be granted to make applications alleging unlawful
discrimination which were the subject of complaints terminated by the President
of the AHRC. The only exception to this requirement would have been where the President
of the AHRC terminated the complaint because he or she was satisfied that the
subject matter of the complaint involves a significant issue of public
importance that should be considered by the Federal Court or Federal Circuit
Court.[135]
This went further than the committee's recommendation which was limited to a
requirement for leave of the court where the complaint had been terminated on
particular grounds (such as termination on the basis that the complaint was
trivial, vexatious or lacking in substance).[136]
1.275
While, in light of the above, the measure as first introduced may have
had the effect of creating additional procedural barriers in relation to
meritorious complaints, amendments were subsequently moved which addressed this
issue in the bill as passed.[137]
These amendments broadened the exemptions to the requirement for an applicant
to seek the leave of the Federal Court or the Federal Circuit Court to make an
application alleging unlawful discrimination. Specifically, the bill as passed
provided that applicants whose complaints have been terminated on the basis
that there is no reasonable prospect of the matter being settled by
conciliation will not be required to seek the leave of the Federal Court or the
Federal Circuit Court.[138]
The Supplementary Explanatory Memorandum notes that these amendments 'reflect
that termination on the basis of no reasonable prospect of conciliation does
not reflect the merit of the complaint. As such, these amendments will ensure
that there are not additional barriers for meritorious complaints to access the
Federal Court or the Federal Circuit Court'.[139]
1.276
The amendments to the AHRC complaints handling processes as passed appear,
in broad terms, to continue to conform with the right to an effective remedy. The
legislation continues to provide a process through which complainants may seek
redress in respect of claims of unlawful discrimination, and the changes on
their face do not appear to place significant barriers on the access to a
remedy in relation to a meritorious complaint. While it is still uncertain as
to how these changes will operate in practice, the process changes appear
likely to be compatible with the right to an effective remedy on the face of the
legislation.
Committee comment
1.277
The committee notes that the process changes to the Australian
Human Rights Commission as passed by both Houses of Parliament are likely to be
compatible with the right to an effective remedy.
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
Purpose |
Seeks to establish a Commission
of Inquiry to inquire into unethical, unlawful and improper conduct in the
banking, financial services and related sectors |
Sponsor |
Mr Bob Katter MP |
Introduced |
House of Representatives, 27
March 2017 |
Rights |
Fair hearing; not to
incriminate oneself; privacy; freedom of expression; freedom of assembly (see
Appendix 2) |
Status |
Advice only |
Requirement to provide evidence that may incriminate an individual
1.278
The People of Australia’s Commission of Inquiry (Banking and Financial
Services) Bill 2017 (the bill) seeks to establish a Commission of Inquiry
(Commission) into the banking, financial services, and related sectors. The
bill would invest the commission with the full powers of a royal commission, as
set out in the Royal Commissions Act 1902 (RC Act).[140]
1.279
Section 6A of the RC Act provides that a person appearing as a witness for
a commission is not excused from answering a question on the ground that the
answer might tend to incriminate that person. Section 6P of the RC Act permits
a royal commission to disclose evidence relating to a contravention of a law to
certain persons and bodies including the police and the Director of Public
Prosecutions.
Compatibility of the measure with
the right not to incriminate oneself
1.280
Specific guarantees of the right to a fair trial in the
determination of a criminal charge, guaranteed by article 14 of the International Covenant on Civil and Political Rights
(ICCPR) include the right not to incriminate oneself (article
14(3)(g)).
1.281
Article 14 and the right to a fair trial, and more particularly the
right not to incriminate oneself, are directly relevant where a person is
required to give information to a commission of inquiry which may incriminate
themselves and that incriminating information can be used either directly or
indirectly by law enforcement agencies to investigate criminal charges.
Adopting the powers of a royal commission, which include a power to require a
witness to answer questions even if it may incriminate themselves, engages and
limits the right not to incriminate oneself.
1.282
The right not to incriminate oneself may be subject to permissible
limitations where the measure pursues a legitimate objective, and is rationally
connected to, and proportionate to achieving, that objective. The statement of
compatibility does not address the limitation on the right not to incriminate
oneself, save for reference to Part 4 of the bill, which allows some
protections for disclosure by whistleblowers.
1.283
The committee has previously raised serious human rights
concerns in relation to the powers of royal commissions on a number of
occasions.[141] The statement of compatibility does not acknowledge the committee's
previous concerns with the respect to the powers of royal commissions and the right
not to incriminate oneself.
1.284
Additionally, while section 6A of the RC Act provides a use immunity for
witnesses compelled to answer questions, and section 14 of the bill would
provide use immunity for disclosure by whistleblowers, the bill does not appear
to provide a derivative use immunity in relation to self-incriminating
evidence. Use and derivative use immunities prevent compulsorily disclosed
information, (or anything obtained as an indirect consequence of making a
compulsory disclosure) from being used in evidence against a witness.[142]
The inclusion of both use and derivative use immunities is relevant to an
assessment of the proportionality of any measure that limits the right not to
incriminate oneself.
Compatibility of the measure with the to privacy
1.285
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.286
By applying the offence in the RC Act for failure to appear as a witness
and answer questions, in circumstances where the witness is not afforded the
privilege against self-incrimination, the measure engages and limits the right
to privacy.
1.287
While the right to privacy may be subject to permissible limitations in
a range of circumstances, this particular limitation on the right to privacy
was not addressed in the statement of compatibility.
1.288
The statement of compatibility therefore does not meet the standards
outlined in the committee's Guidance Note 1, which require that, where a
limitation on a right is proposed, the statement of compatibility provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
Contempt of Commission
1.289
As set out above, the bill would invest the commission with the full
powers of a royal commission, as set out in the RC Act.[143]
1.290
Section 6O of the RC Act provides that a person commits an offence if
they:
-
intentionally insult or disturb a royal commission;
-
interrupt the proceedings of a royal commission;
-
use any insulting language towards a royal commission;
-
by writing or speech use words false and defamatory of a royal commission;
or
-
are in any manner guilty of any intentional contempt of a royal commission.
1.291
The penalty for the offence is two hundred dollars or imprisonment for
three months.
Compatibility of the measure with
the right to freedom of expression and the right to freedom of assembly
1.292
The right to freedom of expression requires the state not to arbitrarily
interfere with freedom of expression, particularly restrictions on political
debate. It protects all forms of expression and the means of their
dissemination, including spoken, written and sign language and non-verbal
expression. The right to peaceful assembly is the right of people to gather as
a group for a specific purpose.
1.293
As applied by the bill, the prohibition of any wilful disturbance or
disruption of a hearing of the Commission engages and may limit the right to
freedom of expression and the right to freedom of assembly. These rights may be
subject to permissible limitations where the measure pursues a legitimate
objective, is rationally connected to, and proportionate to achieving, that
objective. However, the statement of compatibility does not provide any
analysis or justification for the limitation on the freedom of expression and
the right to freedom of assembly.
1.294
It is not clear whether the restriction imposed may have the effect of
criminalising legitimate expression and assembly, for example, a demonstration
organised by persons to protest against what they consider as the excessive or
inappropriate use of the powers of the Commission or other matters relating to
the work of the Commission. As currently drafted, there may be a danger that
the provisions may limit legitimate criticism of or objection to the Commission
and its activities.
Issue of arrest warrants by the Commission
1.295
As set out above, the bill would invest the commission with the full
powers of a royal commission, as set out in the RC Act.[144]
1.296
Section 6B of the RC Act provides that if a person served with a summons
to attend before a royal commission as a witness fails to attend in accordance
with the summons, a President, Chair or Commissioner may issue a warrant to
arrest the person. This warrant authorises the arrest of the witness, the
bringing of the witness before the Commission and the detention of the witness
in custody for that purpose until the witness is released by order of the
member.
Compatibility of the measure with the
right to liberty
1.297
The right to liberty, which prohibits 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.
1.298
Empowering the Commission to issue arrest warrants and to authorise the
detention of a witness, rather than requiring application to a court, engages
and limits the right to liberty. The statement of compatibility does not
provide an assessment of how this measure engages and may limit human rights.
In this respect it is noted that the committee has previously
raised serious human rights concerns in relation to the powers of royal
commissions on a number of occasions.[145] The statement of compatibility does not acknowledge the committee's
previous concerns with respect to related measures.
Committee comment
1.299
Noting the human rights concerns raised by the bill, the
committee draws the human rights implications of the bill to the attention of the
legislation proponent and the Parliament.
1.300
If the bill proceeds to further stages of debate, the committee
may request further information from the legislation proponent.
Extradition (People's Republic of China) Regulations 2017 [F2017L00185]
Purpose |
Sought to extend the
definition of an 'extradition country' in the Extradition Act 1988 to
include the People's Republic of China, thereby giving effect to the Treaty
on Extradition between Australia and the People's Republic of China. This
regulation was subsequently repealed by the Extradition (People's Republic of
China) Repeal Regulations 2017 [F2017L00325] |
Portfolio |
Attorney-General |
Authorising legislation |
Extradition Act 1988 |
Disallowance |
This regulation was repealed by the Extradition (People's Republic of
China) Repeal Regulations 2017 [F2017L00325] on 29 March 2017[146] |
Rights |
Prohibition against
torture, cruel, inhuman and degrading treatment; life; fair hearing and fair
trial; liberty; equality and non-discrimination (see Appendix 2) |
Status |
Advice only |
Background
1.301
The issues raised by this regulation have previously received sustained
consideration by the committee.
-
In its First report of 2013, the committee considered a
similar regulation and asked the then Attorney-General how that regulation was
compatible with a number of human rights.[147]
-
In its Sixth report of 2013 the committee gave detailed
consideration to the issue and further requested the then Attorney-General's
advice on the compatibility of the Extradition Act 1988 (the Extradition
Act) with a number of specific rights.[148]
-
In its Tenth report of 2013, having received the then
Attorney-General's response,[149]
the committee concluded that the Extradition Act raised serious human rights
concerns and considered that this was an issue that may benefit from a full
review of the human rights compatibility of the legislation.
-
In its Twenty-second report of the 44th Parliament the
committee considered another similar regulation and indicated that it was not
in a position to undertake a full review of the Extradition Act to assess it
for compatibility with human rights. However, the committee restated its
position that the Extradition Act could benefit from a comprehensive review to
assess its provisions against Australia's human rights obligations.[150]
The committee concluded that until a comprehensive review is undertaken of the
Extradition Act to assess its compatibility with Australia's international
human rights obligations, the committee is unable to conclude that regulations
that extend its operation are compatible with Australia's human rights
obligations.
Extending the definition of 'extradition country' to include the People's
Republic of China
1.302
The Extradition Act provides the legislative basis for extradition in
Australia. The Extradition Act allows Australia to receive extradition requests
from countries that are declared by regulation to be an 'extradition country'
under the Extradition Act and for powers under that act to be exercised in
relation to such a request.
1.303
The Extradition (People's Republic of China) Regulations 2017
[F2017L00185] (the regulation) sought to extend the definition of 'extradition
country' in the Extradition Act to include the People's Republic of China,
thereby giving effect to the Treaty on Extradition between Australia and the
Peoples Republic of China.[151]
1.304
However, the Extradition (People's Republic of China) Repeal Regulations
2017 [F2017L00325] (the repeal regulation) repealed the regulation on 29 March 2017.
Compatibility of the measure with
multiple rights
1.305
The committee previously noted that it had concerns with the
compatibility of the Extradition Act with a number of human rights, including:
-
prohibition against torture, cruel, inhuman and degrading
treatment;
-
right to life;
-
right to a fair hearing and fair trial;
-
right to liberty; and
-
right to equality and non-discrimination.
1.306
The regulation effectively sought to extend the operation of the
Extradition Act by including a newly declared country as one to which a person
may be subject to extradition. Accordingly, the regulation engages the rights
set out above.
1.307
As the Extradition Act was legislated prior to the establishment of the
committee, the scheme has never been required to be subject to a foundational
human rights compatibility assessment by the minister in accordance with the
terms of the Human Rights (Parliamentary Scrutiny) Act 2011. A full
human rights assessment of a regulation which extends the application of powers
under the Extradition Act, by listing a new 'extradition country', requires an
assessment of whether the powers themselves are compatible with human rights.
The committee is therefore faced with the difficult task of assessing the human
rights compatibility of declaring a new country to be an 'extradition country' without
the benefit of a foundational human rights assessment of the Extradition Act
from the minister.
1.308
As set out above, the committee has previously considered that the
Extradition Act would benefit from a comprehensive review by the minister to
assess its provisions against Australia's obligations under international human
rights law.[152]
1.309
However, in this case, the regulation was repealed by the repeal
regulation on 29 March 2017 and is no longer in force.
Committee comment
1.310
The committee refers to its previous consideration of the Extradition
Act 1988, and in particular, its recommendation that the Extradition
Act 1988 would benefit from a comprehensive review to assess its provisions
against Australia's human rights obligations.
1.311
The committee draws the human rights implications of the Extradition
Act 1988, and any extension of its operation by a regulation, to the
attention of the minister and the Parliament.
1.312
The committee notes that the Extradition (People's Republic of
China) Regulations 2017 was repealed by the Extradition (People's Republic of
China) Repeal Regulations 2017 on 29 March 2017 and is no longer in force.
1.313
If a new regulation is made to extend the definition of an
'extradition country' in the Extradition Act 1988, the committee may
request further information from the minister with respect to its compatibility
with Australia's obligations under international human rights law.
Bills not raising human rights
concerns
1.314
Of the bills introduced into the Parliament between 27 and 30 March 2017,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
-
ASIC Supervisory Cost Recovery Levy Bill 2017;
-
ASIC Supervisory Cost Recovery Levy (Collection) Bill 2017;
-
ASIC Supervisory Cost Recovery Levy (Consequential Amendments)
Bill 2017;
-
Banking Amendment (Establishing an Effective Code of Conduct)
Bill 2017;
-
Communications Legislation Amendment (Deregulation and Other
Measures) Bill 2017;
-
Criminal Code Amendment (Protecting Minors Online) Bill 2017;
-
Fair Work Amendment (Pay Protection) Bill 2017;
-
National Vocational Education and Training Regulator Amendment
(Annual Registration Charge) Bill 2017;
-
National Vocational Education and Training Regulator (Charges)
Amendment (Annual Registration Charge) Bill 2017;
-
Ozone Protection and Synthetic Greenhouse Gas Management
Legislation Amendment Bill 2017;
-
Parliamentary Business Resources Bill 2017;
-
Parliamentary Business Resources (Consequential and Transitional
Provisions) Bill 2017;
-
Primary Industries Research and Development Amendment Bill 2017;
-
Petroleum and Other Fuels Reporting Bill 2017;
-
Petroleum and Other Fuels Reporting (Consequential Amendments and
Transitional Provisions) Bill 2017;
-
Renew Australia Bill 2017;
-
Treasury Laws Amendment (2017 Enterprise Incentives No. 1) Bill
2017; and
-
Veterans’ Affairs Legislation Amendment (Omnibus) Bill 2017.
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