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.
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) |
Previous reports |
4 of 2017 and 5 of 2017 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the Crimes Legislation Amendment
(Powers, Offences and Other Measures) Bill 2017 (the bill) in its Report 4
of 2017, and requested a response from the Minister for Justice by 26 May
2017.[1]
2.4
The minister's response to the committee's inquiries was received on 29 May
2017 and discussed in Report 5 of 2017.[2]
The committee requested further information from the minister by 30 June 2017
in relation to the human rights issues identified in that report.
2.5
The Minister's response to the committee's inquiries was received on
30 June 2017. The response is discussed below and is reproduced in full at Appendix 3.
Functions of the Australian Federal Police – assistance and sharing
information
2.6
Schedule 1 of 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.
2.7
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
human rights
2.8
As noted in the initial human rights analysis, 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.[3]
2.9
The right to privacy may be subject to permissible limitations which are
provided by law and not considered arbitrary for the purpose of international
human rights law. 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.
2.10
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.[4]
2.11
The initial analysis stated that this was likely to be, in broad terms,
a legitimate objective for the purposes of international human rights law.
However, the analysis raised questions about the adequacy of safeguards in
place with respect to AFP assistance and cooperation with such bodies,
including the sharing of information. The concern in relation to the right to
privacy was addressed by the Minister's initial response, however, the
committee requested further information in relation to the right to life and
the prohibition on torture (discussed further below).[5]
2.12
In particular, the initial analysis noted that the sharing of
information overseas in the context of law enforcement raises concerns in
respect of the right to life, which were not addressed in the statement of
compatibility. In addition, the initial analysis noted the possibility that the
sharing of information, or cooperation in investigation, may result in torture,
or cruel, inhuman and degrading treatment or punishment. This issue was also
not addressed in the statement of compatibility.
2.13
In relation to both the right to life, and the prohibition on torture,
or cruel, inhuman and degrading treatment or punishment, the committee sought
the advice of the minister about the compatibility of the measure with the
relevant rights (including any relevant safeguards).
Minister's initial response
2.14
The minister's initial response explained that much of the assistance
and information provided will not relate to individual investigative cases so, as
a practical matter, the proposed new function may not impact upon human rights
in these instances. The committee's previous report stated that, nonetheless,
the proposed new function still engages a range of human rights by permitting
the sharing of information overseas.
2.15
The committee's previous report welcomed the AFP's commitment, as
outlined in the minister's response, to review both the National Guideline on
Death Penalty and the National Guideline on torture, or cruel, inhuman and
degrading treatment or punishment (the guidelines) in light of the measure.
Compatibility of the measure with the
right to life and the prohibition on torture, cruel, inhuman and degrading
treatment or punishment
2.16
In relation to whether the measure is compatible with the right to life
and the prohibition on torture, or cruel, inhuman and degrading treatment or
punishment, the minister provided the following information:
Information and intelligence sharing with international organisations
and non-government organisations for the purposes of the proposed new function
will often not relate to any particular individual under investigation, and
therefore will not raise death penalty, or torture, cruel, inhuman or degrading
treatment or punishment (TCIDTP), implications.
Where information provided to an international organisation
or a non-government organisation has potential death penalty or TCIDTP implications,
the AFP will apply the National Guideline on Death Penalty or the National Guideline
on TCIDTP. For example, this might arise when providing information via
Interpol to a law enforcement agency in a country that has not abolished the death
penalty or where TCIDTP concerns exist.
As noted above, the National Guideline on Death Penalty and
the National Guideline on TCIDTP do not specifically refer to the proposed new
function of cooperating with international organisations. Should the amendment
pass Parliament, the AFP will review both National Guidelines to ensure they
reflect legislative and operational requirements.
The AFP already applies the National Guideline on Death Penalty
and the National Guideline on TCIDTP to relevant information disclosures it
makes to international organisations under its existing functions. The AFP will
continue to treat any disclosures of information that may involve the death
penalty or TCIDTP implications with the same process as it would for the exchange
of information between law enforcement agencies.
National Guideline on Death Penalty
All AFP appointees are required to comply with the National
Guideline on Death Penalty. Inappropriate departures from the National
Guideline may constitute a breach of AFP professional standards and be dealt
with under Part V of the AFP Act.
Under the National Guideline on Death Penalty, the AFP is
required to consider relevant factors before providing information to foreign
law enforcement agencies if it is aware the provision of information is likely
to result in the prosecution of an identified person for an offence carrying
the death penalty. Ministerial approval is required for any case in which a person
has been arrested or detained for, charged with, or convicted of an offence
which carries the death penalty.
The Government has committed to make improvements to the
National Guideline on Death Penalty. On 1 March 2017, the Government tabled its
response to the Joint Standing Committee on Foreign Affairs, Defence and
Trade’s report: A world without the death penalty: Australia's Advocacy for
the Abolition of the Death Penalty. In its response, the Government agreed
to implement a number of recommendations, including:
- the National Guideline be amended by ‘explicitly applying
the Guideline to all persons, not just Australian citizens’;
- the National Guideline be amended by ‘including a provision
that, in cases where the AFP deems that there is a ‘high risk’ of exposure to the
death penalty, such cases be directed to the Minister for decision’ (the
Government accepts this recommendation in principle, however re-affirms that
the decision-making in the pre-arrest phase is best made within the AFP)
- The National Guideline be amended by ‘articulating the
criteria used by the AFP to determine whether requests are ranked ‘high’,
‘medium’ or ‘low’ risk’. These amendments will enhance the existing safeguards
against the provision of information in death penalty cases.
National Guideline on TCIDTP
The National Guideline on TCIDTP outlines the obligations for
AFP appointees where a person is in danger of being subjected to TCIDTP. All
AFP appointees are required to comply with the National Guideline on TCIDTP.
Inappropriate departures may constitute a breach of AFP professional standards
and be dealt with under Part V of the AFP Act.
The National Guideline on TCIDTP provides a list of mandatory
considerations before information can be disclosed to foreign authorities in
situations where there are substantial grounds for believing a person that is
detained would be in danger of being subjected to TCIDTP. It also sets out a
formal approval process for the release of such information. The information,
if provided, must include a caveat to protect against unintended use of the information,
and on-disclosure to third parties.
2.17
The minister’s initial response did not provide a copy of the guidelines
referred to. Accordingly, in order to complete the human rights assessment of
the measure against the right to life and the prohibition on torture, cruel,
inhuman and degrading treatment or punishment, the committee advised the
minister that it would be assisted by a current copy of the following
guidelines:
-
AFP National Guideline on international police-to-police
assistance in death penalty situations; and
-
AFP National Guideline on offshore situations involving potential
torture or cruel, inhuman or degrading treatment or punishment.
Minister's further response
2.18
In response to the committee's request, the minister provided copies of
both sets of guidelines.
Right to life
2.19
The AFP National Guideline on international police-to-police assistance
in death penalty situations (death penalty guideline) relevantly provides:
Assistance before detention, arrest, charge or conviction
The AFP is required to consider relevant factors before
providing information to foreign law enforcement agencies if it is aware the
provision of information is likely to result in the prosecution of an
identified person for an offence carrying the death penalty.
Senior AFP management (Manager /SES-level 1 and above) must
consider prescribed factors before approving provision of assistance in matters
with possible death penalty implications, including:
-
the purpose of providing the
information and the reliability of that information
-
the seriousness of the suspected
criminal activity
-
the nationality, age and personal
circumstances of the person involved
-
the potential risks to the person,
and other persons, in providing or not providing the information
-
Australia's interest in promoting
and securing cooperation from overseas agencies in combatting crime
-
the degree of risk to the person
in providing the information, including the likelihood the death penalty will
be imposed.
2.20
The death penalty guideline further provides that 'Ministerial approval
is required in any case in which a person has been arrested or detained for,
charged with, or convicted of an offence which carries the death penalty'.
2.21
However, the safeguards outlined in the current death penalty guideline
do not require that the AFP not share information that could contribute to the
application of the death penalty overseas. The death penalty guideline does not
prohibit cooperation when the information could be used or is likely to be used
in a death penalty case. Rather the death penalty guideline only requires the
relevant AFP officer to consider exposure to the death penalty as a possible
factor within the list of prescribed factors. The death penalty guideline does
not set out how these different factors are to be weighed or how potential
conflicts may be resolved. Further, the Senior Executive Service level
consideration of a request only applies if the AFP 'is aware' that the information
is likely to result in the prosecution of the identified person with a death
penalty charge. Accordingly, the guideline may not capture cases where the AFP
may not be aware of a possible prosecution on a death penalty charge, without
itself making inquiries to ascertain whether such a risk is present.
2.22
As noted in the minister's previous response, the government has agreed
to amend the death penalty guideline by setting out:
-
that the guideline specifically applies to all persons not just
Australian citizens;
-
that in cases where the AFP deems that there is a 'high risk' of
exposure to the death penalty, such cases will be directed to the minister for
decision; and
-
the criteria used by the AFP to determine whether requests are
ranked 'high', 'medium' or 'low' risk.
2.23
While this appears likely to strengthen the level of safeguards in the
death penalty guideline, it is unclear from the information provided from the
minister why these amendments to the death penalty guideline have not yet
occurred. They also do not address many of the concerns set out above.
2.24
Further, it is noted that discretionary or administrative safeguards
alone, such as those contained in the death penalty guideline, are likely to be
insufficient for the purpose of permissible limitations on the right to life.[6] This is because
administrative and discretionary safeguards are less stringent than the
protection of statutory processes and can be amended or removed at any time. It
is noted that there is currently no direct prohibition under Australian law of
sharing information in circumstances where a person may be exposed to the death
penalty. This raises concerns about the adequacy of protections in relation to
the right to life.
2.25
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 nation 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'.[7]
Torture, cruel, inhuman or
degrading treatment or punishment
2.26
In relation to the disclosure of information to foreign authorities, the
TCIDTP guideline relevantly provides:
Where the disclosure of information relates to a person who
is detained, or is likely to be detained, by a foreign authority, AFP
appointees must consider the:
-
purpose for which the information
is being sought by the foreign authority
-
laws, practices and human rights
record of the foreign authority involved (if known)
-
evidence of past significant harm
or past activity which may give rise to such harm
-
pattern of conduct shown by the
receiving country in similar cases
-
consequences of lawfully
disclosing information, including the likelihood that the person could be
detained by a foreign authority (if the person is not already in detention)
-
operational requirements
-
consequences of withholding the
information, including the potential impact on AFP relationships with foreign
partner agencies.
Where the AFP appointee considers that there are substantial
grounds for believing the person would be in danger of being subjected to
TCIDTP, formal approval for the release of the information must be obtained
from Manager International Engagement...
Manager International Engagement must:
-
determine whether such assistance
should be provided, and any limitations or restrictions that may apply
-
record the decision and reasons in
PROMIS as a critical decision.
2.27
Under international human rights law, states have an obligation not to
expose anyone to the real risk of torture.[8]
The prohibition on torture, cruel, inhuman and degrading treatment is absolute
and may never be subject to any limitations. In this respect, it is noted that
the TCIDTP guideline does not prohibit information being provided where there
is a real risk that it will cause or contribute to the risk of torture. The TCIDTP
guideline only requires referral to the Manager of the International Engagement
Office where the AFP appointee considers there are 'substantial grounds for
believing the person would be in danger of being subjected to TCIDTP.'[9]
The Manager of International Engagement has the discretion to decide whether or
not to disclose information regardless of the risk of TCIDTP.
2.28
Further, for the reasons set out above, discretionary or administrative
safeguards alone, such as those contained in the TCIDTP guideline, are likely
to be insufficient for the purpose of ensuring compliance with the prohibition
on torture. It is noted that there is currently no requirement under Australian
law to decline to disclose information where it may result in a person being
tortured.
Committee response
2.29
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.30
In relation to the right to life, neither Australian law or the
AFP's current guidelines and policies prohibit sharing information that may
expose people to the death penalty in foreign jurisdictions. Accordingly,
currently there is a risk that information sharing may occur in circumstances
where it is incompatible with the right to life, that is, where the death
penalty may be applied.
2.31
In relation to the prohibition on torture, cruel, inhuman or
degrading treatment or punishment, the AFP's current guidelines do not prohibit
sharing information that may lead to or contribute to torture. There is also
currently no requirement under Australian law to decline to disclose
information where it may result in a person being tortured. Accordingly,
currently there is a risk that information sharing may occur in circumstances
where it is incompatible with the prohibition on torture.
2.32
The AFP has committed to review both the guidelines in light of
the measure. In order to ensure the compatibility of the measure with human
rights, the committee recommends that such a review give consideration to the
matters outlined above, including instituting statutory safeguards.
Electoral and Other Legislation
Amendment Bill 2017
Purpose |
Seeks to amend various Acts
in relation to electoral, broadcasting and criminal matters to: amend
authorisation requirements in relation to political, electoral and referendum
communications; replace the current criminal non-compliance regime with a
civil penalty regime to be administered by the Australian Electoral
Commission; amend the Criminal Code Act 1995 to criminalise conduct
amounting to persons falsely representing themselves to be, or to be acting
on behalf of, or with the authority of, a Commonwealth body; and create a new
aggravated offence where a person engages in false representation |
Portfolio |
Special Minister of State |
Introduced |
House of Representatives,
30 March 2017 |
Rights |
Freedom of expression; fair
trial; criminal process; presumption of innocence (see Appendix 2) |
Previous report |
5 of 2017 |
Status |
Concluded examination |
Background
2.33
The committee first reported on the Electoral and Other Legislation
Amendment Bill 2017 (the bill) in its Report 5 of 2017, and requested a
response from the Special Minister of State by 30 June 2017.[10]
2.34
The minister's response to the committee's inquiries was received on 30
June 2017. The response is discussed below and is reproduced in full at Appendix 3.
Requirement to authorise and notify particulars in respect of electoral
matters and referendum matters
2.35
Proposed section 321D of the bill would amend the Commonwealth
Electoral Act 1918 (Electoral Act) to provide that communications about
'electoral matters' on behalf of particular entities (disclosure entities) are
required to be authorised and would impose a requirement to notify particulars
such as the entity's name, address and the person who has authorised the
communication.[11]
Under proposed section 321D, subject to exceptions, all types of communication
fall within the authorisation and notification requirements including, for
example, printed material, leaflets, text messages, voice messages, telephone
calls and conversations in the course of door-knocking.[12]
2.36
'Electoral matter' is currently defined in sections 4(1) and 4(9) of the
Electoral Act. Section 4(1) currently provides that 'electoral matter' means a 'matter
which is intended or likely to affect voting in an election'. The proposed
legislation would amend section 4(9) to provide that a matter is taken to be
intended or likely to affect voting in an election if it contains an express or
implicit comment on: the election; or a political party, candidate or group of
candidates in the election; an issue submitted to, or otherwise before, the
electors in connection with the election.
2.37
A 'disclosure entity' is defined under proposed section 321B as:
-
a registered political party;
-
current members of parliament and current and former candidates (for
the previous 4 years for candidates for election to the House of
Representatives or 7 years for candidates for election to the Senate);
-
an associated entity (defined under Part XX of the Electoral Act
to include unions that pay affiliation fees to political parties and
organisations that are set up as fundraising vehicles by political parties);
-
individuals or organisations who are required, or have been
required in previous financial years, to submit returns to the Australian
Electoral Commission because they have donated to a party or a candidate.
2.38
Proposed sections 321D(3)-(4) provide for exceptions to the
authorisation requirements for certain types of communications (including, for
example, clothing or anything that is designed to be worn; reporting of the news;
communication for satire; academic or artistic purposes; and personal or
internal communications).
2.39
A failure to comply with the new authorisation requirements is a civil
penalty provision of 120 penalty units (currently $21,600) for an individual.
2.40
Proposed Part IX, section 110C applies similar provisions in relation to
referendum matters (defined as a matter intended or calculated to affect the
result of a referendum).[13]
Compatibility of the measure with
the right to freedom of expression
2.41
The right to freedom of opinion and expression is protected by article
19 of the International Covenant on Civil and Political Rights (ICCPR). 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.[14]
2.42
The initial human rights analysis stated that, by expanding authorisation
and notification requirements in relation to communication about electoral and
referendum matters, the measure imposes a practical limitation on freedom of
expression. By requiring the statement of certain particulars including, for
example, the address of the entity, the relevant town or city of the entity and
the name of the natural person responsible for giving effect to the
authorisation, the measure imposes a restriction or burden on the form of
communication.[15]
2.43
As noted in the initial analysis, the statement of compatibility
acknowledges that the measure engages and limits the right to freedom of
expression but argues that this limitation is permissible.[16]
In relation to the objectives of the measure, the statement of compatibility
notes:
There is a strong public interest in ensuring that voters are
aware of who is communicating to them without adversely impacting public
debate. These authorisation requirements facilitate transparency and public
confidence in Australia's electoral processes. They allow voters to assess the
credibility of the information they rely on when forming their political
judgment and selecting their representatives in the Parliament.
Ultimately, this Bill facilitates free and informed voting at
elections, an object which is essential to Australia's system of representative
democracy...the Bill's restrictions on anonymous electoral communications
supports the right of participants in public debate to protection against
unlawful attacks on reputation by providing key information necessary to
commence appropriate civil action under Australia’s defamation laws.[17]
2.44
The previous analysis stated that these objectives are likely to
constitute legitimate objectives for the purposes of international human rights
law and that the measure appears to be rationally connected to these
objectives.
2.45
In relation to the proportionality of the measure, the statement of
compatibility notes:
The Bill limits the restriction on anonymous speech to
circumstances strictly necessary to protect the public interest by providing
explicit exemptions for:
-
the reporting of news, current
affairs and editorial content in news media
-
communication solely for genuine
satirical, academic or artistic purposes
-
personal or internal
communications of disclosure entities
-
opinion polls and research
relating to voting intentions.
2.46
These exceptions provide important scope to freedom of expression in a
range of circumstances.
2.47
However, the initial analysis identified concerns in relation to the
proportionality of the measure given the breadth of communications covered by
the authorisation requirements and the burden that the notification requirement
may impose depending on the type of communication being made. The measure
applies not only to political parties but potentially to a range of advocacy
groups, interest groups, unions and civil society organisations including those
who may have a large number of volunteers. These volunteers may be actively
involved in a range of campaign activities such as, for example, phone calls or
door-knocking. It was stated in the previous analysis that, where communication
activities occur in the context of telephone calls or door-knocking, it may be
impractical to convey the required notification to each individual recipient
while still attempting to communicate about electoral matters. In the voluntary
context, it may also be potentially challenging for organisations to ensure
that volunteers notify the required particulars. As noted above, failure to
comply with section 321D(5) is a civil penalty provision of 120 penalty units.
The explanatory memorandum notes in relation to the potential effect on
individuals that:
Where a notifying entity that is not a legal entity, for
example, a citizens' group, contravenes subsection (5), subsection 321D(6) provides
that for the purposes of the Electoral Act and the Regulatory Powers Act, each
member, agent or officer (however described) of the entity who contributed to
the contravention through action or inaction in their role would be
individually responsible for not meeting the authorisation obligation of the
notifying entity as required by subsection 321D(5).[18]
2.48
As stated in the initial analysis, this could act as a potential
disincentive for some civil society or citizens organisations to use volunteers
or convey information about electoral or referendum matters in light of the
penalties to be applied. In other words, the measure could have a particular
'chilling effect' on freedom of expression for certain groups, individuals and
volunteers.
2.49
Accordingly, the committee requested the advice of the minister as to
whether the limitation is a reasonable and proportionate measure to achieve its
stated objective, including the existence of relevant safeguards, and whether
the measure is the least rights restrictive way of achieving its objective,
noting the potential impact on some groups and individuals including
volunteers.
Minister's response
2.50
The minister provided a range of information in response to the
committee's inquiries. In relation to whether the measure is a proportionate
limit on the right to freedom of expression, the minister states that:
When considering whether the measure is proportionate, it is
important to ensure first and foremost that its contribution to the promotion
of civil and political rights is not disregarded. As noted in the Committee's
analysis and the explanatory memorandum, the measure engages the right to
freedom of expression, as the authorisation requirements amount to restrictions
on anonymous political speech in limited circumstances. However, it does so to
preserve and enhance Australia's system of representative government, including
several of the rights in the International Covenant on Civil and Political
Rights.
With respect to the Committee's specific request for advice
as to whether the measure is the least rights-restrictive way of achieving its
objectives, I would highlight that the measure requires a person to communicate
something additional to that political matter, and that additional
communication is unlikely to detract substantially from the political
communication itself. For example, the measure requires candidates to identify
themselves, their party affiliation and the location of their principal office
in robocalls made on their behalf. It does not otherwise impact the messages in
the recording.
2.51
In relation to the specific concern raised in the committee's initial
report about breadth of the communications that will be covered by the
authorisation requirement, the minister states:
While it is true that Schedule 1 covers a broad range of
communications, this is both necessary and appropriate to achieve the purpose
of the measure and capture all possible forms of communication that are
relevant in achieving the object of promoting free and informed voting. To
limit the requirements to specific forms of communication would severely
undermine its intent. Such authorisation requirements are largely an extension
of existing requirements that cover all forms of political communication, and
will minimise the scope for existing transparency measures from being
circumvented.
2.52
In relation to the relevant safeguards, including for volunteer based
organisations, the minister's response provides that:
With respect to the Committee's enquiry about relevant
safeguards, the obligations in Schedule 1 are targeted at persons or entities
with a particular interest in the outcome of an election, that have incurred
significant expenditure in making gifts to candidates or political parties, or
in the public expression of views relating to an election or election issue.
This appropriately targets those who might seek to exert the most influence on
voters, with the key test being engagement in political finance and/or paid
political advertising. This is an important safeguard which ensures volunteer-based
organisations are only subject to the requirements, to the extent that they
engage in political finance or expression, where this incurs significant
expenditure.
The Government considers that there is a legitimate purpose
for this burden on the implied freedom, as it facilitates free and informed
voting at elections and referenda. On balance, the strong public interest in
promoting free and informed voting at elections outweighs the slight burden
placed on certain individuals and entities under Schedule 1. I therefore
consider the restriction of the right to freedom of expression is reasonable
and proportionate.
2.53
On the basis of the information provided in the minister’s response, on
balance, the measure appears likely to be a proportionate limit on the right to
freedom of expression. Despite the practical burden on communication identified
in the initial analysis, the extent of the limitation is not such as to prevent
expression but rather a requirement to provide additional information with such
expression; there is an understandable rationale for the application of
authorisation requirements in a consistent way across different forms of
communication, and volunteer-based organisations will only be subject to
authorisation requirements where they engage in political financing.
Committee response
2.54
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.55
The committee notes that the measure is likely to be compatible
with the right to freedom of expression.
Compatibility of the measure with
criminal process rights
2.56
As outlined in the initial human rights analysis, 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 provision is effectively
'criminal' for the purposes of international human rights law, it will engage
the criminal process rights under articles 14 and 15 of the ICCPR.
2.57
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.[19]
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.[20]
2.58
In relation to whether the civil penalty provision may be regarded as
criminal, the statement of compatibility states only that:
The Bill's civil penalty provisions do not constitute a
criminal penalty for the purposes of human rights law as they are not
classified as criminal under Australian law and are restricted to people in a
specific regulatory context.[21]
2.59
As set out in the committee's Guidance Note 2, 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.
2.60
The next step in assessing whether the civil penalties are 'criminal'
under international human rights law is to look at 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 respect it was noted that while the proposed
regime applies to regulate electoral and referendum matters, the regime could
apply quite broadly including to volunteers, such that it is unclear whether
the regime can categorically be said not to apply to the public in general. Enforcement
is to be undertaken by a public authority under the Regulatory Powers
(Standard Provisions) Act 2014.
2.61
As noted in the initial analysis, the final 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 in context is relevant. In this
respect, a penalty of 120 penalty units (currently $21,600) is substantial. It
would apply for each breach including for each individual who contributed to
the breach where the organisation is unincorporated. These issues were not
addressed in the statement of compatibility.
2.62
Accordingly, the committee sought the advice of the minister 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 nature and purpose of the penalties is such that the
penalties may be considered 'criminal';
-
whether the severity of the civil penalties that may be imposed
on individuals is such that the penalties may be considered 'criminal';
-
whether the application of the civil penalties could be limited
so as to not apply as broadly to individuals; 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)).
Minister's response
2.63
In response 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, the minister's response states:
For the reasons outlined below, I am advised that the civil
penalty provisions proposed in the Bill would not be considered 'criminal' for
the purposes of international human rights law.
2a) Nature and purpose of the
penalty
A penalty is likely to be considered criminal for the purposes
of human rights law if the purpose of the penalty is to punish or deter, and if
the penalty applies to the public in general. While the penalty is designed to
deter persons or entities from hiding their identity in order to make false or
misleading communication with voters, it is unlikely to apply to the public in
general. The civil penalties introduced in the Bill are designed to regulate
electoral and referendum matters. The new measures and penalties will only
apply to a restricted number of people in a specific regulatory or disciplinary
context, that is, those engaging in political finance or paid political
advertising. Historic application to specified printed items has also been
retained.
The measures are unlikely to capture the general public, and
will not impact the content of political communications. The measures will
increase the transparency of the source of political communication to voters,
promoting free and informed voting at elections.
2b) Severity of the penalty
Civil penalties may be considered criminal for the purposes
of human rights law if the penalty carries a penalty of imprisonment or a
substantial pecuniary sanction. The civil penalty provision in Schedule 1 of
the Bill would replace several current criminal offences associated with
failure to authorise electoral communications in Part XXI of the Commonwealth
Electoral Act 1918. The civil penalties do not have corresponding criminal provisions,
and therefore do not carry a term of imprisonment.
When setting the civil pecuniary penalty amount, I considered
first and foremost, that the amount must be sufficient to act as a deterrent to
deliberate non-compliance. This primary objective is different to the purposes
of criminal penalties, which include punishment or retribution. For example,
civil pecuniary penalties should contemplate the cost of court proceedings, and
should be sufficiently high as to justify the need to go to court. With this in
mind, I have been advised that the civil penalty provisions should be subject
to a minimum of 60 penalty units.
Secondly, I considered what amount would be fair, considering
the object of the measure. In order for civil penalties to be fair, there
should be a degree of proportionality between the seriousness of the
contravention and the quantum of the penalty. I considered the potential gains
that may be made or losses that may be caused by a person or body corporate
through contravention of a civil penalty provision. Ultimately, contravening
the civil penalty provision could influence the results of an election, and the
effectiveness and legitimacy of Australia's system of representative
government. I therefore considered that the civil penalty amount associated
with the Bill needed to be substantial because of the potential harm that could
be caused by non-compliance, as well as the strong incentives and significant
financial resources of those who would do most harm through deliberate
non-compliance.
A complicating factor in this consideration was the
fact that a key target of the Bill, political parties, are not legal entities.
It is therefore necessary to identify responsible individuals within political
parties. The Bill does this in a fair manner by identifying those actually responsible
for the failure to authorise in a particular incident, and holding them
accountable for it. This is the fairest, least rights restrictive way to
implement the measure.
2c) Application to individuals
The Committee has also asked whether the application of the
civil penalties could be limited so as to not apply as broadly to individuals.
I consider that any such limitation is not possible, as this could undermine
the purpose of the proposed provisions. In order for voters to be able to weigh
the arguments in political debate, it is necessary to establish a level playing
field in terms of transparency amongst those with a particular interest in the
outcome of an election.
2.64
Accordingly, the minister's response addresses each element of the test
for whether the civil penalty may be considered criminal for the purpose of
international human rights law. Based on the detailed information provided,
including in relation to the regulatory context and the severity of the penalty
and its application, the measure appears unlikely to be criminal for the
purposes of international human rights law.
2.65
It follows that the criminal process rights under articles 14 and 15 of
the ICCPR are unlikely to apply.
Committee response
2.66
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.67
In light of the additional information provided the committee
notes that the measure appears unlikely to be 'criminal' for the purpose of
international human rights law. The committee notes that this information would
have been useful in the statement of compatibility.
Reverse evidential burden of
proof
2.68
Proposed section 150.1 of the Criminal Code would make it an offence for
a person to falsely represent that the person is, or is acting on behalf of, or
with the authority of, a commonwealth body (and makes it a higher level offence
to do so with the intention of obtaining a gain, causing a loss, or influencing
the exercise of a public duty or function).[22]
2.69
Subsection 150.1(4) provides that if the commonwealth body is
fictitious, these offence provisions do not apply unless a person would
reasonably believe that the commonwealth body exists. This would appear to
provide an exception to the relevant offences.
2.70
Subsection 13.3(3) of the Criminal Code Act 1995 provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification bears an evidential burden in relation to that matter.
Compatibility of the measure with
the right to be presumed innocent
2.71
Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt. Provisions that reverse the burden of
proof and require a defendant to disprove, or raise evidence to disprove, one
or more elements of an offence, engage and limit this right.
2.72
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which take
into account the importance of the objective being sought and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective.
2.73
The committee's Guidance Note 2 sets out some of the key human
rights compatibility issues in relation to provisions that create offences in
order to assist legislation proponents (including reverse burden offences).
2.74
In this case, the previous analysis stated that it appears that the
defendant bears an evidential burden (requiring the defendant to raise evidence
about the matter). However, the reversal of the evidential burden of proof in
proposed section 150.1(4) has not been addressed in the statement of
compatibility. In this instance, the proposed offence appears to require the
defendant to raise evidence that suggests a reasonable possibility that 'a
person would reasonably believe that the Commonwealth body exists'. This seems to
be an objective fact and not one that is peculiarly within the knowledge of the
defendant. Accordingly, it appears that the limitation may not be proportionate.
2.75
The committee therefore drew to the attention of the minister its Guidance
Note 2 which sets out information specific to reverse burden offences.
2.76
The committee also requested the advice of the minister as to:
-
whether the reverse burden offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the reverse burden offence 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.
Minister's response
2.77
In relation to whether the reverse burden offence in proposed section
150.1 is reasonable and proportionate to achieving the stated objective, the
minister's response states:
Proposed section 150.1 of the Criminal Code introduces new
offences to criminalise a person falsely representing themselves to be, or to
be acting on behalf of, or with the authority of, a Commonwealth body. Proposed
subsection 150.1(3) clarifies that, for the purposes of the new offences, it is
immaterial whether the Commonwealth body exists or it is fictitious. Proposed
subsection 150.1(4) provides that, if the Commonwealth body is fictitious,
these offences do not apply unless a person would reasonably believe that the
Commonwealth body exists.
The Government considers that proposed subsection 150.1(4)
does not create an offence-specific defence. Rather, the condition of 'unless a
person would reasonably believe that the Commonwealth body exists' forms an
element of the offence and the burden of proof for proving that element will
sit with the prosecution. That is, there is no reversal of the onus of proof
with respect to this subsection. This conclusion is based on the wording of the
provision. The provision provides that, if the Commonwealth body is fictitious,
the offences do not apply unless the condition is fulfilled.
The condition is therefore a condition precedent to the
offence being applicable, and forms an element of the offence to be proven by
the prosecution. For example, if a person falsely represents they are the
Ministry for Hot Dog Appreciation - a fictitious Commonwealth body - no offence
is committed unless the prosecution can prove that a member of the public would
reasonably believe that the Ministry for Hot Dog Appreciation in fact exists.
2.78
In light of the minister's helpful advice that the condition of 'unless
a person would reasonably believe that the Commonwealth body exists' in section
150.1(4) forms an element of the offence such that the burden of proving that
element lies with the prosecution, the measure appears to be compatible with
the presumption of innocence.
Committee response
2.79
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.80
The committee notes that, based on the information provided by
the minister, the measure appears to be compatible with the presumption of
innocence. The committee notes that this information would have been useful in
the statement of compatibility.
2.81
The committee recommends that the explanatory materials be
amended to include this information.
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) |
Previous reports |
4 of 2017 & 6 of 2017 |
Status |
Concluded examination |
Background
2.82
The committee first reported on the Fair Work Amendment (Protecting
Vulnerable Workers) Bill 2017 (the bill) in its Report 4 of 2017, and
requested a response from the Minster for Employment by 26 May 2017.[23]
2.83
The minister's response to the committee's inquiries was received on 1
June 2017 and discussed in Report 6 of 2017.[24]
The committee requested a further response from the minister by 14 July 2017.
2.84
A further response from the minister was received on 24 July 2017.
The response is discussed below and is reproduced in full at Appendix 3.
Civil penalty provisions
2.85
Schedule 1, Part 1 of 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.[25]
The maximum penalty for a 'serious contravention' would be 600 penalty units ($126,000).[26]
2.86
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.[27]
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.[28]
2.87
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.[29]
Compatibility of the measure with
criminal process rights
2.88
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).
2.89
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]
2.90
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.[31]
2.91
As noted in the initial human rights analysis, 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.[32]
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.
2.92
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, since
the penalty only applies to the regulatory regime of the Fair Work Act rather
than to the public at large, and enforcement proceedings may be brought not
only by the FWO but an affected employee or union, the nature of the penalty
should not be considered 'criminal'.[33]
2.93
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.
2.94
As the initial human rights analysis stated, 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 ($126,000)[34]
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.[35]
2.95
Further, according to the explanatory memorandum, the severity of the
increased or new penalties proposed in the bill are aimed at addressing
concerns about preventing the exploitation of vulnerable workers.[36]
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.[37]
2.96
The initial analysis noted that this provides one argument as to why the
penalties may be considered civil in nature, rather than criminal, 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.
2.97
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 ($126,000), a
10-fold increase from the current maximum penalty of 60 penalty units.[38]
The previous analysis noted that 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. The analysis stated that it was
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.
2.98
The committee therefore sought 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 (ICCPR,
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)).
Minister's initial response – civil penalty provisions
2.99
The minister's response, discussed in the committee's Report 6 of
2017,[39]
provided a range of reasons as to why the proposed civil penalty provisions
should not be considered 'criminal' for the purpose of international human
rights law with respect to employers (including individual employers).
2.100
However, the response failed to address the specific issue raised in the
initial analysis about the application of some civil penalty provisions to
individual employees, in relation to matters that do not appear related
to combatting the exploitation of vulnerable workers (for example, the matter
set out at [2.97] above).
2.101
In relation to whether the civil penalty provisions nevertheless comply
with criminal process rights, the minister's response set out a range of
information, including that the proposed provisions would not apply
retrospectively; that the privilege against self-incrimination, while
abrogated, would be replaced with immunities; and that there was no risk of
being tried and punished twice because the proposed provisions 'are regulatory
in nature and there are no apparent corresponding criminal offences'.
2.102
The previous analysis noted that some of these mechanisms provide
relevant safeguards in relation to criminal process rights, particularly the
protection against being tried and punished twice and that the provisions do
not apply retrospectively. However, other aspects of the scheme do not comply
with criminal process rights, namely the right to be presumed innocent which
generally requires that the prosecution prove each element of the offence to
the criminal standard of proof of beyond reasonable doubt. Accordingly, were
the civil penalty provisions to be considered 'criminal' for the purpose of
international human rights law, there would be serious questions about whether
they are compatible with criminal process rights.
2.103
Accordingly, the committee requested the further advice of the minister
as to whether:
-
the severity of the civil penalties that may be imposed on
individual employees is such that the penalties may be considered criminal; and
-
the increases in the maximum civil penalties could be limited so
as to not apply, or to be reduced, in respect of individual employees.
Minister's further response – civil penalty provisions
2.104
The minister's response provides a range of information in relation to
the committee's further request. In relation to the severity of the penalty
that may be imposed, the minister argues the penalty should not be considered
criminal because:
-
there is no criminal sanction if
there was a failure to pay the penalty
-
the proportionate size of the
maximum penalty, given the nature of the relevant contraventions and in
particular the value of typical employee underpayments where contraventions
have been both deliberate and systematic.
2.105
In this respect, the minister's response further points to the
particular aims of the penalty as a basis for arguing that the penalty should
not be considered criminal:
The Explanatory Memorandum to the Bill explains that the
exploitation of workers can result in significant losses to underpaid workers.
These laws would also ensure that there is an even playing field for all
employers regarding employment costs. Contraventions of these important
entitlements undermine the workplace relations regime as a whole and deliberate
contraventions demonstrate a flagrant disregard for the rule of law.
2.106
In relation to the potential scope of the application of the civil
penalties, the minister's response states:
The serious contraventions regime is limited to deliberate
and systematic wrongdoing, and only applies in relation to the provisions
identified in section 539 (as amended by the Bill) and listed in the
Explanatory Memorandum. These provisions have been chosen because they
predominantly prescribe employer obligations like minimum employee
entitlements, requirements for employment records or related matters like sham
contracting. This is the area of concern where deliberate and systematic
contraventions have emerged, and the Bill seeks to address this behaviour.
Situations where an employee inadvertently or mistakenly fails to engage in a
dispute resolution clause will not be captured.
Because the serious contraventions regime only applies in
relation to deliberate and systematic wrongdoing, my assessment remains that
the proposed regime does not engage any of the applicable human rights or
freedoms and is appropriate.
2.107
It is accepted that the serious contraventions regime predominantly
applies to employer obligations. However, as identified in the committee's
previous Report 4 of 2017 and again in Report 6 of 2017, some of
these provisions relate to employee obligations and the severity of the penalty
applied in this context raises concerns. The minister's response states
generally in relation to the application of the penalty to individuals:
...The Government also considers that a maximum penalty of 600
penalty units for individuals like sole traders is appropriate given the scale
of potential loss that may result from a serious contravention and in light of
evidence that the current penalties are simply too low to effectively deter the
most serious wrongdoing in this area.
2.108
The minister’s response still does not address concerns in relation to
the application of the penalty to individual employees. The minister's response
also does not address the committee's question as to whether the increases in
the maximum civil penalties could be limited so as to not apply, or to be
reduced, in respect of individual employees. Noting the severity of the penalty
in the context of individual employees, and that the minister's response did
not address this concern, it appears that the measure may be 'criminal' for the
purposes of international human rights law. This means that the criminal
process rights under articles 14 and 15 are likely to apply. However, as set
out above at [2.102], the civil penalty regime, in its current form does not
appear to comply with these rights.
Committee response
2.109
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.110
The preceding analysis indicates that the civil penalty may be 'criminal'
for the purpose of human rights law noting the severity of the penalty and its
application to individual employees and that the minister's response did not
adequately address this issue.
2.111
This means that the criminal process rights contained in articles
14 and 15 of the ICCPR may apply. However, the civil penalty regime does not
appear to be compatible with these rights.
Requirement to comply with Fair Work Ombudsman Notice ‒ coercive information-gathering
powers
2.112
The bill also 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.[40]
Failure to comply with the FWO notice may result in a civil penalty of 600 penalty
units ($126,000).[41]
2.113
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.[42]
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 to the obstruction of Commonwealth officials.[43]
Compatibility of the measure with
the right not to incriminate oneself
2.114
The initial human rights analysis noted that proposed section 713(1)
engages and limits the right not to incriminate oneself 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. Following correspondence with the minister,
the committee concluded in Report 6 of 2017 that these coercive evidence
gathering powers were likely to be incompatible with the right not to
incriminate oneself (noting in particular the breadth of the powers and the
absence of a derivative use immunity).[44]
Compatibility of the measure with
the right to privacy
2.115
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.
2.116
As stated in the initial human rights analysis, 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.[45]
2.117
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.
2.118
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.[46]
2.119
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.
2.120
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. The initial analysis stated
that there is no reasoning or evidence provided as to how it is anticipated
that the powers will be effective in achieving their objective.
2.121
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. As the initial analysis noted,
the fact that 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.[47]
The committee's consideration of similar measures and its previous concerns
about human rights compatibility were not addressed in the statement of
compatibility.
2.122
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, as stated in the previous
analysis, there are serious questions about whether such powers constitute a
proportionate limit on the right to privacy in this case.
2.123
First, the proposed powers appear to be insufficiently circumscribed
with reference to 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.
2.124
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 [approaches] have failed or are inappropriate.'[48]
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, again raising the question of whether the measure as drafted is
sufficiently circumscribed.
2.125
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, as
the initial analysis noted, 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.[49]
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.
2.126
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.[50] 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.[51]
2.127
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 was noted in this respect that section 713(1) also abrogates the privilege
against self-incrimination.
2.128
The committee therefore sought 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 [2.121] to [2.127].
Minister's initial response – coercive information-gathering powers
and the right to privacy
2.129
In relation to how the measure is effective to achieve (that is,
rationally connected to) its stated objective, the minister initially provided
the following advice:
The proposed FWO powers are effective to achieve the stated
objectives of:
-
more 'effectively deterring
unlawful practices, including those that involve the deliberate and systematic
exploitation of workers', and
-
ensuring 'the Fair Work Ombudsman
has adequate powers to investigate and deal with serious cases involving the
exploitation of vulnerable workers and the deliberate obstruction of its
investigations'.
Inadequacies in the Fair Work Ombudsman's powers have been
highlighted by some recent cases. In FWO investigations into 7-Eleven for
example, the Fair Work Ombudsman resorted to CCTV footage and registers of fuel
levels to reconstruct hours of work for underpaid workers due to a lack of cooperation
by the company. Investigations into the Baiada group in New South Wales stalled
altogether due to lack of cooperation. These are not discrete examples but form
part of a broader picture of deliberate non-compliance by certain unscrupulous
operators.
These cases show how serious instances of underpayment may
not be able to be investigated where any employer refuses to provide documents
or cooperate with a FWO investigation. The limitation on the powers also means
that vulnerable workers may not have sufficient confidence that they can come forward
without facing retribution from their employer or others.
2.130
The minister's response further explained that the current law is
ineffective in addressing such issues:
While FWO Inspectors may interview people under the Fair Work
Act, para 709(e), there is currently no penalty for a person who refuses or
fails to answer questions. In these kinds of cases, investigations stall and
the Act becomes very difficult if not impossible to enforce.
2.131
The committee's previous report acknowledged that the coercive
information gathering powers may be of assistance in tackling and addressing
systematic worker exploitation. Accordingly, they are likely to be rationally
connected to the stated objective of the measure.
2.132
In relation to whether the limitation is proportionate to achieving its
stated objective, the minister's response stated:
The proposed FWO powers have been drafted to pursue the
legitimate objective of ensuring 'the Fair Work Ombudsman has adequate powers
to investigate and deal with serious cases involving the exploitation of
vulnerable workers and the deliberate obstruction of its investigations'. The
breadth of the powers goes no further than necessary to achieve this stated
objective.
The proposed measure is carefully drafted to include
appropriate safeguards, so the proposed new FWO powers are proportionate to the
outcomes being sought. The safeguards have been modelled on provisions
conferring similar powers on ASIC and the ACCC and are described in more detail
in the Explanatory Memorandum.
The Fair Work Act is the primary workplace legislation in
Australia and it is critical that it is, and is seen to be, enforceable and
enforced.
2.133
Accordingly, the committee's previous report acknowledged that the
measure pursues a legitimate objective. The minister's response stated that the
measure goes 'no further than necessary' to achieve this objective. However, as
noted above, the coercive information gathering powers would apply across an
extremely broad range of conduct under the Fair Work Act including conduct by
individual employees and in circumstances where there are no allegations or
evidence of worker exploitation. The measure accordingly appears to be
insufficiently circumscribed. This concern is reinforced by the committee's
previous conclusions,[52]
and the criticism by international supervisory bodies, regarding similar
coercive information gathering powers set out above at [2.126].[53]
2.134
The minister's response stated that there are sufficient safeguards to
ensure that the measure is a proportionate limit on the right to privacy.
However, no information was provided about these safeguards or response made to
the concerns raised in the initial human rights analysis. The response did 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. Finally, the minister's response did not address why the 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 or why it is necessary to abrogate the privilege against
self-incrimination.
2.135
Accordingly, the committee requested the further advice of the minister
as to the proportionality of the measure including:
-
what safeguards exist in relation to the measure;
-
whether additional safeguards could be included in relation to
the measure (such as external safeguards);
-
whether the power could be further circumscribed so as to only
apply to cases where there is suspected exploitation of employees; and
-
why the extent of the limitation is proportionate to the
investigation of industrial matters noting that the powers go beyond those
usually available to the police.
Minister's further response – coercive information-gathering powers and the
right to privacy
2.136
The minister provides a range of information in response to the committee's
inquiries as to the proportionality of the measure. In relation to what
safeguards exist in relation to the regime, the minister's response states:
The Bill includes extensive safeguards, which have been
modelled on comparable provisions that apply to the Australian Securities and
Investments Commission and the Australian Competition and Consumer Commission.
The Bill's Explanatory Memorandum notes at paragraph 105 that
the proposed safeguards have also been framed consistently with A Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,
September 2011 and the Administrative Review Council Report 48, The Coercive
Information-gathering Powers of Government Agencies. The safeguards
include:
-
the Fair Work Ombudsman (FWO) may
only exercise the proposed new information-gathering powers if it has
reasonable grounds to believe a person can help with an investigation—this
imposes an objective standard, so a suspicion is not enough
-
the proposed new power to issue a
FWO notice may only be exercised by the Fair Work Ombudsman personally, or a
delegate who is a Senior Executive (SES) or acting SES member of staff
-
an interview conducted under the
new powers may only be conducted by the FWO personally or by an SES or acting
SES member of staff
-
a FWO notice must be in writing
and in the form prescribed by the regulation (if any)
-
a recipient of a FWO notice has a
guaranteed minimum of 14 days to comply with the notice
-
a person attending a place to
answer questions may be legally represented, and is entitled to be reimbursed
for certain reasonable expenses, up to a prescribed amount
-
there is protection from liability
relating to FWO notices
-
self-incriminating information,
documents or answers given in response to a FWO notice cannot be used against
the person who gave the evidence in any proceedings.
The overarching legal framework includes robust oversight
arrangements. Central to the oversight regime are judicial review, the
Commonwealth Ombudsman and the Privacy Act 1988 (Privacy Act).
...in light of the safeguards described above, I am satisfied
the proposed limitation on the right to privacy is proportionate. The proposed
amendments will ensure alleged contraventions of workplace laws may be properly
investigated, and more effectively deter deliberate and serious non-compliance
with the law. There are no less intrusive measures that could be implemented
that would achieve the same outcome.
2.137
While these safeguards are relevant, as set out above at [2.123] – [2.125],
the previous human rights analysis raised serious concerns in relation to their
adequacy and effectiveness. In relation to whether additional safeguards could
be included, the minister's response states:
This issue was also given consideration in the Senate
Education and Employment Legislation Committee's report on the Bill, dated May
2017. The Report acknowledged concern raised regarding the expansion of the
Fair Work Ombudsman's evidence-gathering powers, but found the proposed new
information-gathering powers would only be used as a last resort and only for
the most difficult and complex cases.
I am satisfied the proposed safeguards provide significant
practical protection to examinees. The Government will however carefully
consider any proposals to provide additional safeguards during the
Parliamentary debate process.
2.138
While the conclusions of other committees may assist this committee in
its work, it is the function of this committee to examine legislation against
Australia's obligations under international human rights law. In particular,
legislation will be incompatible with human rights if it grants powers which
may be used to limit the enjoyment of rights, without being sufficiently
circumscribed and containing sufficient safeguards to only limit rights in a
necessary and proportionate manner. Identifying whether legislation is
sufficiently circumscribed is a core aspect of this committee's function, which
is distinct from other parliamentary committees.
2.139
While it may be the current policy intention of the government and the
FWO to use coercive evidence gathering powers only as a last resort, the
proposed powers are not restricted in this manner in the bill. As set out above
at [2.123], this means that the powers could be used in a much broader range of
circumstances and indicates that the power as drafted is insufficiently
circumscribed. An argument that, as a matter of policy, these laws will not be
used in particular ways does not adequately address human rights concerns. However,
for example, introducing a mechanism such as a requirement that an application
be made to the AAT for the grant of a notice could assist to ensure a FWO
notice is necessary in an individual case.[54]
2.140
In relation to whether the power could be further circumscribed, the
minister states:
I do not accept the proposed information-gathering powers
should be further circumscribed so as to only apply to cases where there is
suspected exploitation of employees.
2.141
However, one of the reasons the committee's previous report had asked
about whether the power could be further circumscribed in this way was that the
statement of compatibility identified the legitimate objective of the power as
preventing the exploitation of employees. As noted in the previous analysis, in
order to be a proportionate limitation on the right to privacy, a power should
be no more extensive than strictly necessary to achieve its legitimate
objective. By not restricting the power to cases where there is exploitation of
workers the power is much more extensive than is necessary to achieve the
previously stated objective of the measure.
2.142
The minister's further response appears to acknowledge that the proposed
power is broader than addressing the objective of preventing the exploitation
of workers, and argues that:
The Fair Work Act 2009 (the Fair Work Act) codifies a
set of rules and conduct 'to provide a balanced framework for cooperative and
productive workplace relations that promotes national economic prosperity and
social inclusion for all Australians ...' (section 3). It is the primary
mechanism through which a variety of internationally recognised human rights
are guaranteed. Each objective described in section 3 of the Fair Work Act is
legitimate, and has a role to play in striking the right balance. The rationale
for enhanced information-gathering powers applies equally across the Fair Work
Act.
The Explanatory Memorandum explains enforcing workplace laws
has become increasingly difficult, and sometimes almost impossible, without
access to more effective procedures than the traditional methods such as
workplace inspections and notices to produce documents. This is particularly so
where there are no relevant records, or records may have been falsified.
2.143
These objectives were not identified in the statement of compatibility,
or the minister's initial response, and apart from the above statement, evidence
has not been provided as to why such extensive information gathering-powers are
required in respect of all matters under the Fair Work Act. It is
further noted that some aspects of the Fair Work Act, including the
restrictions on industrial action, have been criticised by international
supervisory mechanisms as going beyond what is permissible under international
law.[55]
In these circumstances, providing further powers to enforce such laws may
exacerbate underlying human rights concerns in relation to the Fair Work Act.
2.144
Even if it were accepted that the new objectives identified constituted
legitimate objectives for the purposes of international human rights law, there
remain serious concerns in relation to the proportionality of the measure,
namely the breadth of the powers and insufficiency of safeguards explained
above. In relation to why the extent of the limitation is proportionate to the
investigation of industrial matters, noting that the powers go beyond those
usually available to the police, the minister's response states:
I do not accept that the Committee's comparison of the
proposed new information-gathering powers with police powers is apt, given the
Fair Work Act predominately provides for civil, not criminal sanctions under
Australian law. The consequences of wrongdoing under the Fair Work Act are very
different from those under the general criminal law, and this important
difference should be recognised.
2.145
It is true that in key respects the workplace relations context is
different to the investigation of criminal offences. In terms of the
proportionality of rights limiting measures, matters that are more serious may,
by their nature, justify more rights intrusive measures. The limitation imposed
on the right to privacy by this measure in the workplace relations context is extensive,
more so than the powers usually available in the criminal investigation
context, and may apply to conduct that may be less serious in relative terms.
Accordingly, the extent of the power would not appear to be proportionate in a
non-criminal context.
2.146
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.[56] Jurisprudence
from international treaty monitoring bodies and supervisory mechanisms also
supports a finding that the power is not a proportionate limitation on the
right to privacy in the workplace relations context.[57]
Accordingly, the measure appears to be incompatible with this right.
Committee response
2.147
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.148
The preceding analysis indicates that the measure is likely to be
incompatible with the right to privacy.
Social Security (Administration) (Trial Area) Amendment Determination 2017
[F2017L00210]
Purpose |
Amends the Social Security
(Administration) (Trial Area - Ceduna and Surrounding Region) Determination
2015 and Social Security (Administration) (Trial Area - East Kimberley) Determination
2016 to extend trials of cashless welfare arrangements |
Portfolio |
Social Services |
Authorising legislation |
Social Security
(Administration) Act 1999 |
Last day to disallow |
19 June 2017 |
Rights |
Social security; private
life; equality and non-discrimination (see Appendix 2) |
Previous report |
5 of 2017 |
Status |
Concluded examination |
Background
2.149
The committee first reported on the Social Security (Administration)
(Trial Area) Amendment Determination 2017 [F2017L00210] (the determination) in
its Report 5 of 2017, and requested a response from the Minister for
Social Services by 30 June 2017.[58]
2.150
No response was received at the time of finalising this report.
Accordingly, the committee's concluding remarks on the determination are made
in the absence of further information from the minister.[59]
Extending a trial of cashless welfare arrangements
2.151
The determination extends trials of cashless welfare arrangements in
Ceduna and its surrounding region, and East Kimberley for six months. This
extension brings the total period of the trials to 18 months in each location.[60]
Compatibility of the measure with
human rights
2.152
The committee has considered these measures in previous reports in
relation to the Social Security Legislation Amendment (Debit Card Trial) Bill
2015 (Debit Card bill),[61]
and the Social Security (Administration) (Trial - Declinable Transactions)
Amendment Determination (No. 2) 2016 [F2016L01248] (declinable transactions
determination).[62]
The Debit Card bill amended the Social Security (Administration) Act 1999
to provide for a trial of cashless welfare arrangements in prescribed
locations. Persons on working age welfare payments in the prescribed locations
would have 80 percent of their income support restricted, so that the
restricted portion could not be used to purchase alcoholic beverages or to
conduct gambling. The trial arrangements are currently operating in two trial
locations of Ceduna and East Kimberley. Explanatory material for the Debit Card
bill and declinable transactions determination noted that the policy intention
was for the trial to take place for only 12 months in each location.[63]
2.153
As noted in the initial human rights analysis, the explanatory statement
to the determination does not provide detail as to why the extension is
required, but states:
While the early indications of the Trial‘s impact are
positive, the Trial’s extension will allow the Government to make fully
informed decisions about the future of welfare conditionality in Australia.
2.154
The previous human rights assessments of the cashless welfare trial
measures raised concerns in relation to the compulsory quarantining of a
person's welfare payments and the restriction of a person's agency and ability
to spend their welfare payments at businesses including supermarkets. These
concerns related to the right to social security, the right to a private life
and the right to equality and non-discrimination.[64]
2.155
By extending the trials in each location for a further six months, this
instrument engages and limits the abovementioned human rights. As outlined in
the committee's Guidance Note 1, where a limitation on a right is
proposed, the committee expects the statement of compatibility to provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
While the committee previously accepted that the cashless welfare trial
measures may pursue a legitimate objective,[65]
it has raised concerns as to whether the measures are rationally connected to
and proportionate to their objective.[66]
In this instance, the statement of compatibility has not provided enough
information to establish why extending the trials is necessary and will be
effective to achieve the objectives of the trials, and is a proportionate
limitation on the above human rights.
2.156
Noting the human rights concerns raised by the previous human rights
assessments of the trials, and related concerns regarding income management
identified in the committee's 2016 Review of Stronger Futures measures,
the committee therefore sought the advice of the Minister for Social Services
as to:
- why it is necessary to extend the trials for a further six
months;
-
how the extension is effective to achieve (that is, rationally
connected to) the stated objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the objective of the trials.
Committee comment
2.157
The effect of the determination is to extend the trials of
cashless welfare arrangements in Ceduna and its surrounding region and East
Kimberley for six months, bringing the total period of the trials to 18 months.
The initial analysis noted that previous human rights assessments of the trials
identified concerns in relation to the right to social security, the right to a
private life and the right to equality and non-discrimination, and that the
statement of compatibility does not provide information as to why it is
considered necessary to extend the trials beyond 12 months, as originally
envisaged in the Debit Card Bill.
2.158
As noted above, no response from the minister was received at the
time of finalising this report. In the absence of further information, it is
not possible to conclude that the determination is necessary and effective to
achieve the objectives of the trials or is a proportionate limitation on the
human rights set out above.
Mr Ian Goodenough MP
Chair
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