Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
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 to obtain any such prohibited payment; and
-
require full disclosure by
employers and unions of financial benefits they stand to gain under an
enterprise agreement before employees 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) |
Previous report |
4 of 2017 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the bill in its Report 4 of 2017,
and requested a response from the Minister for Employment by 26 May 2017.[1]
2.4
The minister's response to the committee's inquiries was received on 1
June 2017. The response is discussed below and is reproduced in full at Appendix 3.
New offences and concurrent operation of state laws
2.5
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
2.6
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)).
2.7
The effect of proposed section 536C of the Fair Work Act 2009
appears to 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.
2.8
The initial human rights analysis noted that 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.
2.9
The initial human rights analysis noted that section 4C of the Crimes
Act 1914 provides that a person is not liable for being tried and punished
twice under Commonwealth law if they have been punished for that offence under
the law of a state or territory. While this is an important safeguard, it does
not address the reverse situation of possible prosecution under a state or
territory law after being prosecuted under Commonwealth law.
2.10
This matter is not discussed 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.
2.11
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.[2]
2.12
Accordingly, the committee sought 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.
Minister's response
2.13
In relation to whether the measure is compatible with the right to a
fair trial and the right not to be tried and punished twice for the same
offence, the minister's response states:
As the Committee has noted (at [1.45]), section 4C of the Crimes
Act 1914 (Cth) protects a person from being punished for a Commonwealth
offence after having been punished for the same offence under the law of a
State or Territory.
Where a person is first punished for a Commonwealth offence,
the applicability to the person of any overlapping State or Territory offence
is a matter to be determined by the applicable law in that State or Territory,
including the common law.
In this regard, I note that a number of States and
Territories have express statutory provisions dealing with anterior punishments
for Commonwealth offences: see for example Crimes (Sentencing Procedure)
Act 1999 (NSW), s 20; Sentencing Act 1995 (WA), s 11(2); Legislation
Act [2001] (ACT), s 191(2).
2.14
This response confirms that section 4C of the Crimes Act 1914
protects a person from being tried and punished for a Commonwealth offence
after having been punished for the same offence under the law of a state or
territory. This is an important safeguard for the protection of the right not
to be tried and punished twice for the same offence.
2.15
As regards protection against being tried for a Commonwealth offence and
then being tried for a state or territory offence in respect of the same
conduct, the minister's response helpfully identifies protections in New South
Wales, Western Australia and the Australian Capital Territory. However,
information is not provided in relation to the other states and territories. If
such laws preventing double punishment do not exist in particular states or
territories a person may face double punishment and the measure risks being
incompatible with the right not to be tried and punished twice for the same
offence. As a matter of international human rights law the Commonwealth has the
relevant powers and responsibilities to ensure that the right not to be tried
or punished twice for the same offence is complied with at all levels of
government – including in the law of the states and territories – in respect of
the measure.[3]
Committee response
2.16
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.17
Section 4C of the Crimes Act 1914 is an important
safeguard which prevents a person being tried and punished for a Commonwealth
offence after having been punished for the same offence under the law of a
state or territory.
2.18
However, the preceding analysis indicates that double jeopardy
could still arise unless each state and territory also has laws preventing a
person being tried and punished twice for the same offence. On the basis of the
minister’s response, it cannot be concluded that the measure is compatible with
the right not to be tried and punished twice for the same offence.
Strict liability offences
2.19
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.
2.20
The offence carries a maximum penalty of 2 years imprisonment or 500
penalty units for an individual (2500 for a body corporate).
2.21
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
2.22
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.
2.23
As stated in the initial human rights analysis, 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.[4]
2.24
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 the
attachment of strict liability is necessary to pursue the legitimate objective
of eliminating illegitimate cash or in kind payments.[5]
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.[6]
The initial analysis stated that further information from the minister in this
regard would assist the committee to conclude whether the measure permissibly
limits the right to be presumed innocent.
2.25
Noting that strict liability offences engage and limit the right to be
presumed innocent, the preceding analysis raised questions about whether the
strict liability offences are a permissible limitation on this right.
2.26
The committee drew to the attention of the Minister for Employment its Guidance
Note 2 which sets out information specific to strict liability offences.
2.27
The committee requested 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.
Minister's response
2.28
In relation to these questions, the minister provided the following
information:
It is appropriate for strict liability to attach to
paragraphs 536F(1)(a), (c) and (d) of the relevant criminal offence. Section
536F is intended to address the problem which the Royal Commission into Trade
Union and Governance found to be 'insidious' and 'immensely damaging': the
provision of corrupt payments and other benefits by employers to unions and
their officials (Final Report, Volume 5, Chapter 4 at [58]). The Commissioner
stated (at [60]):
Seeking simply to prohibit payments made or received with
a particular intention has consequent difficulties of investigation and proof.
Instead it is recommended that, subject to certain exceptions, all payments by
employers to a relevant union or officials of that union be outlawed.
Paragraph 536F(1)(a) limits the offence to the defendant
being a national system employer who is not an employee organisation. As
explained in the Explanatory Memorandum to the Bill, this element is
jurisdictional in nature, in that it attaches the offence to the relevant
Commonwealth head of power to legislate. Strict liability attaching to this
element can be justified by virtue of the fact that it is jurisdictional in
nature.
One of the principal purposes of the offence provision is to
ensure that a defendant national system employer has sufficiently robust
internal governance and accounting mechanisms in place so as to ensure that
they are aware of whether the recipient of a payment is a person to whom the circumstances
in paragraphs 536F(1)(c) and (d) apply. If the provision were to have fault
elements for paragraphs 536F(1)(c) and (d), the imperative for employers to
have appropriate mechanisms in place to prevent illegitimate payments to
employee organisations and their associates would be diminished. The absence of
fault elements is thus a necessary and proportionate means to achieve the
provision's objectives. Proportionality is further served by the availability
of the defence of reasonable mistake of fact.
Similarly, strict liability attaches to paragraph 536G(1)(c)
because an employee organisation and its officers should be aware of the
circumstances in which the payment of money by an employer would be an offence
against section 536F. The provision is intended to ensure that employee
organisations take sufficient care not to solicit payments from national system
employers that would contravene section 536F. Proportionality is further served
by the availability of the defence of reasonable mistake of fact.
2.29
The response justifies the application of a strict liability element to
the requirement that 'the defendant is a national system employer other than an
employee' on the basis that it is a jurisdictional element of the offence. A jurisdictional
element of an offence is an element that does not relate to the substance of
the offence, but instead links the offence to the relevant legislative power of
the Commonwealth. Accordingly, this particular element appears to be
justifiable as a matter of international human rights law.
2.30
However, it is less clear that the other three strict liability elements
are a proportionate means of achieving the objective of the measure. It is a
serious matter for an individual to be found guilty of a criminal offence in
circumstances where they are not at fault in respect of particular elements of
the offence. The minister's response argues that it would not be appropriate to
apply a fault element to the offence because there should be sufficiently
robust internal governance and accounting mechanisms in place, or the defendant
should be properly aware of the relevant circumstances, and applying a fault
element would weaken the deterrent effect of the provision. Acknowledging this
justification, no specific evidence is provided to support the argument that
inclusion of a fault element would necessarily weaken the deterrent effect,
noting that the fault element may be designed to include knowledge as well as
recklessness as to relevant facts.
2.31
As noted in the minister's response, the defence of reasonable mistake
of fact is available such that there is still some scope provided for a defence
on the strict liability elements of the offence. However, it is not clear from
the response that the strict liability elements are the least rights
restrictive way of achieving the objective of the measure.
2.32
Further, in relation to the proportionality of the measure, it is noted
that the penalty is significant and that a person found guilty of an offence
under these provisions may be subject to a maximum period of two years
imprisonment and/or 500 penalty units. This accordingly is a significant
limitation on the right to be presumed innocent.
2.33
On the basis of the information provided by the minister, it is not
possible to conclude that each strict liability element is compatible with the
right to be presumed innocent beyond reasonable doubt.
Committee response
2.34
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.35
The preceding analysis indicates that, based on the information
provided, it is not possible to conclude that the strict liability elements of
the offence are the least rights restrictive approach, and thereby compatible
with the right to be presumed innocent beyond reasonable doubt.
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; 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 |
Right[s] |
Privacy; reputation; fair
trial; not to incriminate oneself (see Appendix 2) |
Previous report |
4 of 2017 |
Status |
Concluded Examination |
Background
2.36
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).
2.37
The committee first reported on the bill in its Report 4 of 2017,
and requested a response from the Minister of Indigenous Affairs by 26 May 2017.[7]
2.38
The assistant minister's response to the committee's inquiries was
received on 26 May 2017. The response is discussed below and is reproduced in
full at Appendix 3.
2.39
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.[8]
Coercive powers of Royal Commissions—increased penalty for failing to
attend a Royal Commission as a witness
2.40
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.
2.41
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
2.42
The initial human rights analysis noted the 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) including
the right not to incriminate oneself (article 14(3)(g)).
2.43
The RC Act is designed to enable the establishment of
royal commissions with significant information gathering, 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. As a royal commission is not determining a
criminal charge but undertaking a broader examination of an issue,
the investigative functions of a royal commission sit, in part, outside
the protections of the right to a fair trial.
2.44
However, the right to a fair trial, and more particularly the right not
to incriminate oneself, is engaged where a person is required to give
information to a royal commission which may incriminate them 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.
2.45
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.
2.46
The statement of compatibility briefly discusses the abrogation of the
right not to incriminate oneself (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.[9]
2.47
The availability of immunities is relevant to whether a measure is a
proportionate limitation on the right not to incriminate oneself. However, the initial analysis 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.[10] This
issue was not addressed in the statement of compatibility.
2.48
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.[11]
2.49
Accordingly, the committee sought 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
2.50
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.
2.51
The initial human rights analysis stated that 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.
2.52
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.
2.53
Accordingly, the committee sought 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.
Assistant minister's response
2.54
The Assistant Minister to the Prime Minister on behalf of the Minister
for Indigenous Affairs provided a range of information in response to the
committee's requests.
2.55
In relation to the proposal to increase the penalty for failing to
attend a Royal Commission, the assistant minister's response notes that:
The Bill implements recommendation 78 of the final report of
the Royal Commission into Trade Union Governance and Corruption. The Hon John
Dyson Heydon AC QC recommended that the Royal Commissions Act 1902 be
amended 'to increase the penalties for a failure to comply with a summons to
attend, a failure to comply with a notice to produce, a failure to be sworn or
answer questions, and a failure or refusal to provide documents to at least a
maximum penalty of 2 years' imprisonment or a fine of 120 penalty units or both'...
In making that recommendation, Commissioner Heydon observed
that the existing penalty for those offences is 'inadequate' and that a penalty
of up to 2 years' imprisonment is consistent with the penalty applicable to a
failure to comply with notices issued by the Australian Security and Investments
Commission and by the Australian Competition and Consumer Commissioner (pages
626; 630 Final Report).
2.56
Despite the apparent basis for the Heydon Royal Commission recommendation,
such high penalties do not currently apply consistently in respect of the
coercive information gathering powers of the Australian Securities and
Investment Commission (ASIC) and the Australian Competition and Consumer
Commission (ACCC).[12]
2.57
A failure to furnish information or produce documents to the ACCC or
appear before the ACCC is currently subject to imprisonment up to 12 months or
a fine not exceeding 20 penalty units.[13]
2.58
While some offences relating to ASIC's investigation powers subject a
person to up to two years imprisonment or 100 penalty units (or both) for a
failure to appear for examination, answer a question or produce documents,[14]
this is not the case across all such offences.[15]
2.59
In any event, the fact that other agencies have such powers or such
penalties does not mean that such measures are, for that reason, compatible
with the right not to incriminate oneself or the right to privacy.
Compatibility of the measure with
the right not to incriminate oneself
2.60
In response to whether the measure is compatible with the right not to
incriminate oneself, the assistant minister's response states that:
As noted in the Bill's statement of compatibility (para 13),
the Bill does not engage Article 14 because a Royal Commission does not
exercise judicial power and cannot determine criminal charges...
2.61
However, as noted above, this right is engaged and limited because a
person may be required to give self-incriminating information to a royal
commission which may be used by law enforcement agencies to investigate
criminal charges.
2.62
The assistant minister's response nevertheless provides information
addressing whether the measure constitutes a permissible limitation on this
right. As regards the objective of the measure, the response explains:
The proposal to increase penalties for failure to comply with
summonses is aimed at achieving the legitimate objective of ensuring a Royal
Commission can fully inquire into, and report on, matters of public importance.
The proposal is 'rationally connected' to that objective because higher
penalties will enhance compliance with the summonses and therefore the
Commission's ability to obtain information and evidence so that it can conduct
its inquiry.
2.63
The initial human rights analysis of the bill stated that, 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. It can be accepted that the measure is
rationally connected to this objective.
2.64
The assistant minister's response provides the following information in
relation to the proportionality of the measure:
[The proposal to increase the penalty for failure to
comply with summonses] is reasonable and proportionate because while it
reinforces an objective of equipping Royal Commissions with appropriate
investigative powers, there are limits or safeguards on the abrogation of the
privilege against self-incrimination. The privilege still applies where the
production of information or answer to a question might tend to incriminate the
person in relation to an offence, and the person has been charged with the
offence, and the charge has not been finally dealt with by a court.
Furthermore, if incriminating evidence is obtained by a Royal Commission, the
Royal Commissions Act provides a 'use' immunity so that any statement or
disclosure made by the person is not admissible in evidence against that person
in any civil or criminal proceedings (section 6DD).
A Commissioner may communicate information or evidence that
relates to a contravention of the law to certain office holders such [as] the
police or the Director of Public Prosecutions where the Commissioner considers
it appropriate to do so (section 6P). Introducing a 'derivative use' immunity
would unreasonably hinder the ability of these law enforcement agencies to
investigate and prosecute matters reported on by a Royal Commission. However, because
of the 'use' immunity in section 6DD, the law enforcement agencies could not
directly use that information against the person, and could only use it to
obtain further evidence against that person.
2.65
The availability of a 'use' immunity is an important safeguard. The
provision for a 'derivative use' immunity would be a less rights restrictive
approach and provide a stronger level of protection against self-incrimination.[16]
The minister’s response indicates the view that a 'derivative use' immunity may
not be a reasonably available alternative. It is acknowledged that such an
immunity would make it more difficult to investigate individuals on the basis
of self-incriminating information.
2.66
Whether a 'derivative use' immunity is a reasonably available, less rights-restrictive
alternative is an issue that arises in relation to the RC Act as it currently
exists, as well as the bill seeking to increase penalties under the RC Act.
Beyond the general statement in the assistant minister's response, no further
information is provided which addresses why such a 'derivative use' immunity is
not reasonably available or would be unworkable in achieving the stated
objective of the measure to enable royal commissions to 'fully inquire into,
and report on, matters of public importance'. This is especially so as
witnesses would still be required to provide the information requested to the
royal commission.
2.67
Accordingly, it appears that increasing the penalty for non-compliance,
in circumstances where the person is not afforded the privilege against
self-incrimination or given the protection of both a use and derivative use
immunity may not be the least rights restrictive approach. In order to be a
proportionate limit on human rights, a measure must be the least rights restrictive
way of achieving its stated objective.
2.68
Further, increasing the penalty for non-compliance, in context, affects
the proportionality of the coercive evidence gathering powers more generally.
Based on the information provided and this analysis, it is not possible to
conclude that the measure is compatible with the right not to incriminate
oneself.
2.69
The committee has previously raised concerns in relation to the powers
of royal commissions, including concerns regarding the right not to incriminate
oneself, on a number of occasions. These concerns relate to the underlying
statutory regime governing royal commissions as well as amendments which have
expanded that regime.[17]
For the reasons set out below at [2.104]-[2.110], the RC Act would benefit from
a full review of its compatibility with the right to a fair trial, including whether
the provision of immunities under the legislation is sufficient to protect the
privilege against self-incrimination.
Compatibility of the measure with
the right to privacy
2.70
In relation to the compatibility of the measure with the right to
privacy, the assistant minister acknowledges that the measure engages and
limits this right. The minister's response explains that the limitation pursues
a legitimate objective and is rationally connected to that objective, as set
out above at [2.62].
2.71
In relation to the proportionality of the limitation on the right to
privacy, the assistant minister's response states:
The proposal is reasonable and proportionate because while it
reinforces an objective of equipping Royal Commissions with appropriate
investigative powers, there are limits and safeguards on the use and sharing of
personal information obtained by a Commission. For example, a Commission has
power to make a non-publication direction over any evidence given before a
Commission, over the contents of any documents or written statement given to a
Commission, and over any information that might enable a person who [has] given
evidence before the Commission to be identified (section 6D(3)).
Further, a witness can request that their evidence be taken
in private where the evidence relates to the profits or financial position of
any person and taking of the evidence in public would be unfairly prejudicial
to the interests of that person (section 6D(2)). If there is any incriminating
evidence about an individual, the 'use' immunity in section 6DD of the Royal
Commissions Act applies so that any information or statement given by the
person is not admissible in evidence against that person in any civil or
criminal proceedings.
2.72
Under international human rights law the right to privacy encompasses
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.
2.73
That is, while the right encompasses respect for personal information, the
right will also be engaged and limited in relation to some other forms of
information collected, used and shared by royal commissions.
2.74
While the assistant minister's response has identified some relevant safeguards,
as set out above, there remain questions about whether the measure is, in this context,
the least rights restrictive way of achieving its stated objective. As the
committee has pointed out on a number of occasions, discretionary safeguards
may not be sufficient for ensuring that a limitation on the right to privacy is
proportionate in each individual case.
Committee response
2.75
The committee thanks the Assistant Minister for his response.
2.76
The preceding analysis indicates, based on the information
provided, that questions remain as to the compatibility of the measure with the
right to privacy and the right not to incriminate oneself, including whether
less rights restrictive measures are reasonably available, and the sufficiency
of relevant safeguards provided by the RC Act.
2.77
The committee considers that the Royal Commission Act 1902
would benefit from a full review of its compatibility with the right to a fair
trial and the right to privacy, including whether the provision of immunities
and safeguards under the legislation are sufficient to protect human rights.
Coercive powers of Royal Commissions—Power to require person to give
information or statement in writing
2.78
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.
2.79
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.
2.80
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
2.81
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.
2.82
The initial analysis noted that 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.[18]
2.83
Information provided under such powers may be disclosed to the police or
DPP under section 6P of the RC Act. The initial analysis noted that 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.
2.84
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.
2.85
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.[19]
2.86
As set out above, 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.
2.87
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 initial human rights analysis noted that the statement of compatibility does
not demonstrate that the measure imposes a proportionate limitation on the
right to privacy in pursuit of that legitimate objective. In particular, the
statement of compatibility provides no information about why the measure is
necessary to achieve the legitimate objective and does not addresses whether
there are adequate safeguards in place with respect to the exercise of this
power.
2.88
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.[20]
Compatibility
of the measure with the right not to incriminate oneself
2.89
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.
2.90
The initial analysis noted that, in this respect, such information may
be disclosed to the police or DPP under existing powers.[21]
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.
2.91
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.
2.92
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'.[22] The measure
also appears to be rationally connected to this legitimate objective.
2.93
However, the initial human rights analysis stated
that the statement of compatibility did not demonstrate that the measure imposes
a proportionate limitation on the right not to incriminate oneself in pursuit
of that legitimate objective.
Assistant minister's response
2.94
In relation to the proposal to give royal commissions the power to
require a person to give information or a statement in writing, the assistant
minister advises the following in relation to the importance of the measure:
This proposal implements a recommendation by Mr Ian Hanger AM
QC in his report of the Royal Commission into the Home Insulation Program 'to
empower a Royal Commission to compel the provision of statement by a potential
witness' (page 12 of the report). Commissioner Hanger supported the rationale
for a similar recommendation made by the Australian Law Reform Commission in
its 2009 Making Inquiries Report. The ALRC considered that the power to
require written statements ' ... may reduce the need for hearings and
examinations and enable more flexible, less formal and more cost-effective
inquiry procedures' (page 271 of the report).
2.95
In response to the committee's question about the compatibility of this
measure with the right not to incriminate oneself, the assistant minister
stated:
As noted in the Bill's statement of compatibility (para 13),
the Bill does not engage Article 14 [of the ICCPR] because a Royal Commission
does not exercise judicial power and cannot determine criminal charges...
2.96
However, the scope of the right not to incriminate oneself is broader
than described by the assistant minister. As set out above, 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. It is noted in this respect that disclosure may be
made to criminal investigatory authorities and self-incriminating information
could be used to pursue evidence against the person for the purpose of
prosecution.
2.97
The assistant minister's response does however provide the following
information in support of the proportionality of this limitation:
It is acknowledged that the Bill would amend existing section
6A of the Royal Commissions Act so that a person is not, in all cases, excused
from giving information or a written statement on the ground that the
information or statement might tend to incriminate the person. That power is
reasonable and proportionate because while it reinforces an objective of
equipping Royal Commissions with appropriate investigative powers, there are
limits or safeguards on the abrogation of the privilege against
self-incrimination. The privilege would still apply where the giving of
information or a statement might tend to incriminate the person in relation to
an offence, and the person has been charged with the offence, and the charge
has not been finally dealt with by a court. Furthermore, if incriminating
evidence is obtained by a Royal Commission, it is proposed in the Bill that the
'use' immunity in section 6DD of the Royal Commissions Act apply so that any
information or statement given by the person is not admissible in evidence
against that person in any civil or criminal proceedings.
It is also acknowledged that a Commissioner may communicate
information or evidence that relates to a contravention of the law to certain
office holders such [as] the police or the Director of Public Prosecutions
where the Commissioner considers it appropriate to do so (section 6P).
Introducing a 'derivative use' immunity would unreasonably hinder the ability
of these law enforcement agencies to investigate and prosecute matters reported
on by a Royal Commission. However, because of the 'use' immunity in section
6DD, the law enforcement agencies could not directly use that information
against the person, and could only use it to obtain further evidence against
that person.
2.98
For the reasons stated above at [2.66]-[2.68], while the availability of
a 'use' immunity is an important safeguard, other less rights-restrictive
approaches may be available to achieve the objective of the measure.
2.99
In relation to right to privacy, the assistant minister's response
acknowledges that the measure engages and limits the right to privacy.
Regarding the proportionality of the limitation on this right, the assistant
minister's response states:
The proposal is reasonable and proportionate because while it
reinforces an objective of equipping Royal Commissions with appropriate
investigative powers, there are limits and safeguards on the use and sharing of
personal information obtained by a Commission. For example, the Bill would
extend existing section 6D(3) of the Royal Commissions Act so that a Commission
has power to make a non-publication direction over the contents of any written
statement given to a Commission (item 26 of Schedule 5 of the Bill). Existing
section 6D(3)(c) gives a Commission the power to make a non-publication order
over any information that might enable a person who has given evidence before
the Commission to be identified. If there is any incriminating evidence about
an individual, it is proposed that the 'use' immunity in section 6DD of the
Royal Commissions Act apply so that any information or statement given by the
person is not admissible in evidence against that person in any civil or criminal
proceedings (item 28 of Schedule 5 of the Bill).
While a Royal Commission can now invite individuals to give
information or a statement in writing, under that approach the Commission would
need to rely on other existing powers to require an individual to attend to
give evidence if that person refuses voluntarily give the information. As noted
above, the ALRC considered that the power 'may reduce the need for hearings
and examinations and enable more flexible, less formal and more cost-effective
inquiry procedures '.
2.100
It is acknowledged that the measure appears to be aimed at pursuing the
effective operation of royal commissions. However, the coercive nature of the
measure imposes a serious limitation on the right to privacy. While the
assistant minister's response identifies some relevant safeguards, it is
unclear that these will be sufficient to ensure the limitation on the right is
proportionate in all circumstances. As noted above, discretionary safeguards
may not be sufficient for ensuring that a limitation on the right to privacy is
proportionate.
Committee response
2.101
The committee thanks the Assistant Minister for his response.
2.102
The preceding analysis indicates, based on the information
provided, that questions remain as to the compatibility of the measure with the
right to privacy and the right not to incriminate oneself, including whether
less rights restrictive measures are reasonably available, and the sufficiency
of relevant safeguards provided by the Royal Commission Act 1902.
2.103
The committee considers that the Royal Commission Act 1902
would benefit from a full review of its compatibility with the right to a fair
trial and the right to privacy, including whether the provision of immunities
and safeguards under the legislation are sufficient to protect human rights.
Compatibility of the coercive powers of royal commissions with multiple
rights
2.104
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.[23] The statement of compatibility does not acknowledge or address the
committee's previous concerns with respect to related powers.
2.105
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.[24]
2.106
The initial analysis noted that 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.
2.107
Accordingly, the committee sought the advice of the Minister
for Indigenous Affairs as to whether a foundational assessment of the RC
Act could be undertaken to determine its compatibility with human rights
(including in respect of matters previously raised by the committee).
Assistant minister's response
2.108
In relation to the committee's request, the assistant minister's response
states:
I note the Human Rights (Parliamentary Scrutiny) Act 2011
does not require an assessment of this kind. In accordance with the
requirements in sections 8 and 9 of the Human Rights (Parliamentary
Scrutiny) Act 2011, the Government will continue to prepare statements of
compatibility in relation to Bills that amend the Royal Commissions Act and
certain legislative instruments made under the Royal Commissions Act.
I note the Committee refers to particular examples of other
legislation relating to the Royal Commissions Act that has been the subject of
requests for information by the Committee. I
understand that the Committee would have received responses to those requests.
2.109
While the assistant minister is correct in noting that the committee did
receive a response in relation to matters raised previously, the human rights
concerns raised are continuing.
2.110
Further, it is understood that the RC Act was legislated prior to the
establishment of the committee, and for that reason, was never required to be
subject to a foundational human rights compatibility assessment in accordance
with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011.
However, in light of the existing human rights concerns with the RC Act, any
extension of its provisions requires an assessment of how these interact with
existing provisions. It would therefore be of considerable assistance if the RC
Act were subject to a foundational human rights assessment.
Committee response
2.111
The committee thanks the Assistant Minister for his response and
has concluded its examination of this issue.
2.112
The preceding analysis indicates that the Royal Commission Act
1902 has a range of human rights implications.
2.113
The committee considers that the Royal Commission Act 1902
would benefit from a full review of the human rights compatibility of the
legislation.
2.114
The committee draws these matters to the attention of the
Parliament.
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 specified capital gain concessions; and
the Australian Securities and Investments Commission Act 2001 to
permit the sharing of confidential information by the Australian Securities
and Investments Commission with the Commissioner of Taxation |
Portfolio |
Treasury |
Introduced |
House of Representatives,
16 February 2017 (passed both Houses of Parliament on 27 March 2017) |
Right |
Privacy (see Appendix 2) |
Previous report |
Report 4 of 2017 |
Status |
Concluded examination |
Background
2.115
The committee first reported on the Treasury Laws Amendment (2017
Measures No. 1) Bill 2017 (the bill) in its Report 4 of 2017, and
requested a response from the Treasurer in relation to the human rights issues
identified in that report by 26 May 2017.[25]
2.116
The bill passed both Houses of Parliament on 27 March 2017 and received
royal assent on 4 April 2017.
2.117
The minister's response to the committee's inquiries was received on 8
June 2017. The response is discussed below and is reproduced in full at Appendix 3.
Sharing of confidential information with the Commissioner of Taxation
2.118
Schedule 2 of 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
2.119
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.
2.120
Schedule 2 of the bill engages and limits the right to privacy by
allowing ASIC to share confidential information with the commissioner.
2.121
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.[26]
2.122
Under the existing law, ASIC may share confidential information with the
commissioner if ASIC is satisfied that the information will enable or assist
the commissioner to perform or exercise their functions or powers. The initial
analysis noted that this approach would already allow for the sharing of
confidential information in fairly broad terms.
2.123
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'.[27]
The initial human rights analysis stated that, 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 ineffective in meeting this goal. The initial analysis noted 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.
2.124
As noted in the previous analysis, the removal of the requirement for an
assessment by ASIC that sharing confidential information would enable or assist
the commissioner to fulfil relevant functions raises the concern that the
measure is not sufficiently circumscribed. The statement of compatibility does
not explain why such an assessment is no longer required, or has become
inappropriate.
2.125
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, the previous analysis noted that 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. For example, the statement of compatibility does not identify
whether sufficient safeguards are in place to ensure that any unnecessary
sharing of personal or confidential information will not have an adverse effect
on individuals whose information has been shared.
2.126
Accordingly, the committee sought 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.
Minister's response
2.127
The Minister for Finance provided some information in response to the
committee's requests, including explaining the scope of previous information
sharing provisions and how the new powers are intended to be used:
Prior to the amendment made by the Bill, the Australian
Securities and Investments Commission (ASIC) was able to share confidential
information with the Commissioner of Taxation (ATO) on an ad hoc basis.
Subsection 127(4) of the Australian Securities and Investments
Commission Act 2001 required the ASIC Chairperson, or their delegate, to be
satisfied that sharing particular information would enable or assist the ATO to
perform or exercise its functions or powers.
The amendment in the Bill supports improved machine-to-machine
data matching and sharing as it removes the need for the ASIC Chairperson, or
their delegate, to be personally involved in the process. The approach is
appropriate to achieve the objective of streamlining the process for ASIC to
share confidential information with the ATO as it mirrors the existing
arrangements already in place for ASIC to share information with the Reserve
Bank of Australia, the Australian Prudential Regulation Authority and the responsible
Minister.
2.128
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 only
to that private and confidential information which is strictly necessary to
achieve the stated objective of the measure. However, the minister's response
appears to confirm that the measure will be used for machine-to-machine data
matching without any assessment of whether that information needs to be shared.
2.129
Further, the response does not address the committee's question as to
whether the measure is the least rights restrictive means of achieving its
stated objective. Indeed, the broad scope of the powers and their intended use
in machine-to-machine data matching indicate that the measure may not be the
least rights restrictive way of achieving its previously stated objective of 'conduct[ing]
timely compliance activity and better protect the integrity of Australia's tax
system'. As set out above, the ASIC chairperson or their delegate already had
fairly broad information sharing powers that appeared capable of addressing
this objective. The minister's response does not explain why requiring the ASIC
chairperson or their delegate to be satisfied that sharing particular
information would enable or assist the ATO to perform or exercise its functions
or powers is no longer reasonably available. Accordingly, the measure does not
appear to be the least rights restrictive way of achieving its stated objective
as is required for it to be a proportionate limit on human rights.
2.130
It is noted in this respect that the minister's response now puts
forward the objective of the measure as 'streamlining' processes. A legitimate
objective—that is, one that is capable of justifying a proposed limitation of
human rights—must address a pressing or substantial concern and not simply seek
an outcome regarded as desirable or convenient. Streamlining data sharing
processes across agencies is unlikely to satisfy this standard.
2.131
The minister's response also provides some information about relevant
safeguards in relation to confidential and personal information:
As outlined in the explanatory memorandum to the Bill, where
ASIC has shared information with the ATO, the information remains protected
from unauthorised disclosure as Division 355 of Schedule 1 to the Taxation
Administration Act 1953 makes the unauthorised disclosure of confidential
information an offence. The legislation ensures that the confidential
information ASIC shares with the ATO is subject to the same high level of
protection from unauthorised disclosure as all other confidential information
held by the ATO.
Furthermore, the application of the Australian Privacy Principles
and Australian Public Service Code of Conduct to the ATO and ASIC provides for
additional protection of confidential information, particularly in relation to
personal information.
2.132
The availability of safeguards is an important factor in ensuring that a
measure is a proportionate limit on human rights. It is noted that the minister
considers that the Australian Privacy Principles and Australian Public Service
Code of Conduct will apply, although the minister does not explain which
specific principles will apply to protect against the sharing of personal information
by ASIC unless necessary.
Committee comment
2.133
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.134
Based on the information provided, the preceding analysis raises
some concerns in relation to the right to privacy, insofar as it allows for the
sharing of personal and confidential information without requiring any
assessment that such sharing is necessary.
Mr Ian Goodenough MP
Chair
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