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Part 1
Bills introduced 9–11 October 2012
Introduced into the House of
Representatives on 10 October 2012
Portfolio: Attorney-General
Committee view
1.2
The committee considers that the provisions in the bill relating to the
serious drug offences framework are unlikely to raise human rights concerns.
1.3
While the committee considers that the absolute liability and strict
liability provisions in schedule 2 of the bill are unlikely to raise human
rights concerns, the committee seeks further information from the
Attorney-General with regard to the reverse burden offences in subsections
372.1A(5) and 376.3(3) before forming a view on their compatibility with the
presumption of innocence in article 14 (2) of the International Covenant on
Civil and Political Rights (ICCPR).
1.4
The committee considers that the requirement to provide information in
schedule 2 of the bill is unlikely to raise issues of incompatibility with the
right to privacy in article 17 of ICCPR.
1.5
The committee seeks further information from the Attorney-General on a
range of issues in schedule 3 of the bill to assist its consideration of the
compatibility of the bill with human rights.
Purpose of the bill
1.6
This bill amends the Australian Federal Police Act 1979, Crimes
Act 1914, Crimes (Superannuation Benefits) Act 1989, Criminal
Code Act 1995, Customs Act 1901, and Law Enforcement
Integrity Commissioner Act 2006 to:
- facilitate flexibility in the Commonwealth’s serious drug offences
framework to be able to respond quickly to new and emerging substances;
- expand the scope of existing identity crime offences, as well as enact
new offences for the use of a carriage service in order to obtain and/or deal
with identification information;
- create new offences relating to air travel and the use of false
identities;
- improve the operation of the Law Enforcement Integrity Commissioner Act
2006;
- clarify that superannuation orders can be made in relation to all
periods of a person’s employment as a Commonwealth employee, not only the
period in which a corruption offence occurred, and
-
increase the value of a penalty unit and introduce a requirement for the
triennial review of the penalty unit.
1.7
The committee notes that the bill is accompanied by a detailed statement
of compatibility that sets out the relevant information in a helpful and
accessible way.
Compatibility with human rights
Serious drug offences framework
1.8
Schedule 1 of the bill will move the lists of substances to which the
Commonwealth’s serious drug offences apply to regulations, provide for a single
emergency determination mechanism for listing substances, and refine the criteria
that must be satisfied before a determination is made to list a substance.
1.9
The statement of compatibility states that these amendments do not
engage any human rights.
1.10
The committee considers that the amendments are unlikely to raise
human rights concerns but notes that their overarching public health and safety
objectives could be viewed to broadly promote the right to health in article 12
of the International Covenant of Economic, Social and Cultural Rights (ICESCR)
and the right to life in article 6 of the International Covenant on Civil and
Political Rights (ICCPR), particularly where the substance creates a risk of
death or serious harm.
Identity crime offences
Presumption of innocence
1.11
New section 372.1A in part 1 of schedule 2 of the bill creates a new
offence of using a carriage service, such as the internet or a mobile phone, to
obtain and/or deal in identification information where a person intends to
commit, or facilitate the commission of a Commonwealth, State, Territory or
foreign indictable offence.
1.12
The statement of compatibility states that the new offence provision
engages the presumption of innocence in article 14(2) of ICCPR because it
applies absolute liability to the elements of the offence relating to whether
the person deals or obtains identification information ‘using a carriage service’
and whether the offence is an indictable offence against the law of the
Commonwealth, a State or a Territory or a foreign indictable offence. The
application of absolute liability engages the presumption of innocence because it
allows for a physical element of an offence to be established without the need
to prove fault.
1.13
The statement explains that the application of absolute liability to
these elements is justifiable because they are jurisdictional elements that go
towards the Commonwealth’s power to legislate and do not relate to the
substance of the offence or the culpability of the defendant.
1.14
The committee considers that the application of absolute liability to
the jurisdictional elements of the offence is unlikely to raise issues of
incompatibility with article 14(2) of ICCPR.
1.15
New subsection 372.1A(5) provides that if the prosecution proves beyond
reasonable doubt that a person has obtained or dealt with identification
information, ‘then it is presumed, unless the person proves to the contrary,
that the person used a carriage service to deal with or obtain that
information'.
1.16
The statement of compatibility acknowledges that this provision engages
the presumption of innocence in article 14(2) of ICCPR because the defendant
bears a legal burden of proof in relation to establishing that a carriage
service was not used.
1.17
Generally, to be consistent with the presumption of innocence, the prosecution
must prove each element of a criminal offence beyond reasonable doubt. Laws
which shift the burden of proof to the defendant will engage the presumption of
innocence because a defendant’s failure to discharge a burden of proof or to
prove or establish the absence of an element of an offence may permit their
conviction despite reasonable doubt as to their guilt.
1.18
However, reverse burden offences will not necessarily be inconsistent
with the presumption of innocence provided that they are within reasonable
limits which take into account the importance of objective being sought and
maintain the defendant's right to a defence. In other words, the reverse burden
must pursue a legitimate aim and be reasonable, necessary and proportionate to
that aim.
1.19
The statement explains that the legal burden is justifiable in this
instance for the following reasons:
- The element of using a carriage service is not an element that goes to
the substance of the offence, or to the person’s culpability, but is a
jurisdictional element that provides the relevant connection to the
Commonwealth’s constitutional power. The prosecution will still retain the
burden of proving beyond a reasonable doubt that the person obtained or dealt
with identification information for the purpose of committing an indictable
offence.
- It is more practical for the defendant to prove a carriage service was
not used than for the prosecution to prove that it was used. The statement
explains that 'it can be extremely difficult for the prosecution to show that
it was the defendant who physically accessed the particular websites to obtain
the information found on the computer' because 'often the evidence that a
carriage service was used to engage in the conduct is entirely circumstantial'.
1.20
Before forming a view on the compatibility of this provision with
article 14 (2) of ICCPR and noting that the offence carries a maximum penalty
of 5 years imprisonment, the committee proposes to seek clarification from the
Attorney-General as to whether an evidential burden may offer a less
restrictive alternative for achieving the provision’s purpose.
False identity and air travel
1.21
Part 2 of schedule 2 of the bill creates new offences for using false
identities for the purposes of air travel.
1.22
The amendments also give police new powers to request identity information
at airports such as a person’s name and address or evidence of identity,
subject to a threshold test. At constitutional airports, the constable must
reasonably suspect that the person has committed, is committing or intends to
commit a Commonwealth, State or Territory offence punishable by imprisonment of
12 months or more. At airports that are not constitutional airports, the
reasonable suspicion must relate to a Commonwealth offence punishable by
imprisonment of 12 months or more.
Presumption of innocence
1.23
The statement of compatibility identifies that the offence provisions
engage the presumption of innocence in article 14(2) of ICCPR because, similar
to identity offences in new section 372.1A, discussed above, absolute liability
is applied to the jurisdictional elements of the offence.
1.24
The committee considers that the application of absolute liability to
the jurisdictional elements of the offence is unlikely to raise issues of
incompatibility with article 14(2) of ICCPR.
1.25
The statement also notes that strict liability attaches to two elements
of the offence of not providing identity information to a constable when
requested to do so (new section 3UN). These elements are that the request was
made in accordance with the requirements of the legislation and that the
constable complied with his or her obligations.
1.26
The statement explains that the application of strict liability 'in
these circumstances is appropriate as the defendant's knowledge of those issues
is not relevant to their culpability. However, the general defence of mistake
of fact will be available to the defendant.'
1.27
The committee considers that the application of strict liability to
these elements of the offence is unlikely to raise issues of incompatibility
with article 14(2) of ICCPR.
1.28
Finally, the statement notes that new subsection 376.3(3) will insert a
new presumption relating to the requirement in subsections 376.3(1) and 376.3(2)
that the relevant criminal conduct was engaged in using a carriage service. The
presumption will provide that, in relation to the element of the offence that a
carriage service was used, if the prosecution proves beyond a reasonable doubt
that the person engaged in the relevant criminal conduct, then it is presumed
that, unless the person proves to the contrary, that the person used a carriage
service to engage in that conduct.
1.29
In effect, this provision engages the presumption of innocence in
article 14(2) of ICCPR because the defendant bears a legal burden of proof in
relation to establishing that a carriage service was not used. A similar issue
was discussed in relation to new subsection 372.1A(5) above.
1.30
Before forming a view on the compatibility of this provision with
article 14 (2) of ICCPR and noting that the offence carries a maximum penalty
of 12 months imprisonment, the committee proposes to seek clarification from
the Attorney-General as to whether an evidential burden may offer a less
restrictive alternative for achieving the provision’s purpose.
Right to privacy
1.31
The statement acknowledges that the requirement to provide
identification information to a constable under new section 3UN(1) engages the
right to privacy in article 17 of ICCPR.
1.32
The statement sets out a detailed justification for the necessity of the
powers and points to the inclusion of appropriate safeguards to ensure that the
powers are connected to the objective and are no more restrictive than
necessary. In particular, the power requires a threshold to be met before it
can be exercised; the provisions will not operate as a de facto requirement to
carry identification; the person must be informed of the consequences of not
complying with the request; and a non-uniformed constable must show proof of
identity before exercising the power.
1.33
The committee considers that these powers are unlikely to raise
issues of incompatibility with article 17 of ICCPR, as any interference with
privacy would appear to be necessary to achieve the stated objective of
investigating the commission of these offences, which can be considered to be a
legitimate objective. Further, the provisions appear to be drafted with
sufficient precision and contain appropriate safeguards to ensure that the
degree of interference is proportionate to that objective.
Integrity Commissioner's functions
1.34
Part 1 of schedule 3 of the bill clarifies the function of the Integrity
Commissioner with respect to detection and prevention of corruption, widens the
Integrity Commissioner’s scope to consider corruption issues relating to the Australian
Commission for Law Enforcement Integrity (ACLEI) and enables the Integrity
Commissioner to delegate the power to conduct public inquiries to an Assistant
Integrity Commissioner.
1.35
The statement of compatibility states that these amendments do not
engage any human rights.
1.36
The committee considers that the amendments are unlikely to raise any
human rights concerns.
Penalty units
1.37
The amendments in part 2 of schedule 3 will adjust the value of the
penalty unit in the Crimes Act 1914, which regulates value of monetary
penalties for criminal offences in Commonwealth legislation. The adjustment will
increase the value of the penalty unit for Commonwealth criminal offences from
$110 to $170 to accommodate increases in the Consumer Price Index (CPI) since
the value of the penalty unit was last adjusted in 1997. The amendments also
provide for the regular review of the value of the penalty unit in the future.
1.38
The statement of compatibility states that these amendments do not
engage any human rights.
1.39
The committee considers that the amendments are unlikely to raise any
human rights concerns.
Superannuation forfeiture and recovery orders
1.40
The Crimes (Superannuation Benefits) Act 1989 and the Australian
Federal Police Act 1979 provide for the forfeiture and recovery of employer
funded superannuation benefits that are payable or have been paid to Commonwealth
employees who have been convicted of corruption offences and sentenced to more
than 12 months imprisonment. According to the statement of compatibility, the
purpose of the scheme is to implement ‘the public policy objective of ensuring
that superannuation benefits are not paid from public monies to Commonwealth
employees convicted of corruption offences committed in the course of their
employment’.
1.41
Part 3 of schedule 3 of the bill amends these Acts to provide that a
superannuation recovery or forfeiture order can be made in relation to employer
funded contributions and benefits accrued during all periods of Commonwealth
employment, not just the period of employment in which the corruption offence
was committed.
1.42
According to the statement of compatibility, the amendments seek to 'ensure
that the legislation applies equally to all employees who have committed a
corruption offence while an employee, regardless of whether an employee has one
continuous period of employment or more than one separate periods of employment'.
The statement claims that:
The [original] scheme was not
intended to operate so that the forfeiture and recovery of employer funded
contributions and benefits is restricted to the particular period of employment
in which an employee committed a corruption offence. ...
Until recently, it was
thought that the existing scheme applied equally to employees who have one
continuous period of employment as well as to those who have had several
separate periods of employment. Therefore, Commonwealth employees convicted of
a ‘corruption offence’ and sentenced to more than 12 months’ imprisonment would
have had an expectation that they would lose all their employer funded
superannuation contributions under the existing scheme.
1.43
Items 14 and 15 of schedule 3 provide that the amendments will apply to
offences that were committed before or after commencement of the provisions,
but only where an application for a superannuation order is made in relation to
those offences on or after the commencement date.
Rights in work
1.44
The statement of compatibility states that the amendments engage article
7 of ICESCR:
Article 7(a) provides for the
right of everyone to the enjoyment of just and favourable conditions of work,
including remuneration which provides all workers with fair wages and a decent
living for themselves and their families. Superannuation benefits are not
mentioned explicitly in the treaty. However, payment of superannuation benefits
is a form of remuneration for Commonwealth employees.
1.45
The statement states that the amendments ‘limit the rights of
Commonwealth employees, who are convicted of corruption offences and sentenced
to more than 12 months’ imprisonment, to access certain remuneration by
requiring the forfeiture and recovery of employer funded superannuation
benefits’.
1.46
The statement justifies the limitation on the basis that :
- the amendments are aimed at clarifying the operation of a long-standing
legislative scheme, which is narrowly targeted at employees who have committed
serious corruption offences;
- the amendments ensure equitable treatment, in that employees who have
one continuous period of employment will not be treated less favourably than
employees who have had several separate periods of employment; and
- the employee’s own contributions are not subject to forfeiture or
recovery and the orders are automatically revoked if the person’s conviction is
later quashed, or the person’s sentence is reduced or otherwise changed so that
it no longer meets the condition precedent of 12 months’ imprisonment.
1.47
The committee notes that the amendments would expand the operation of
the existing scheme to cover all periods of employment and not just the period
during which the offence was committed. This is not an insignificant change and
potentially involves a substantial financial detriment for some individuals and
their dependents. The statement claims that the scheme was always intended to
work in this way and that employees have had an expectation that they would
lose their entire employer funded superannuation contributions under the
existing scheme. However, it does not provide any information to support these
assertions. It is also not apparent why such clarification is considered to be
necessary – for example, has there been a specific finding that the current
scheme only applies in relation to the period in which the offence was
committed?
Prohibition against retrospective penalties
1.48
A related concern is that the changes have a degree of retrospective
effect because the provisions are not confined to new convictions but will also
apply to convictions which occurred prior to the commencement of the bill. Some
employees may therefore be subject to an increased financial liability on the
basis of a prior conviction.
1.49
The statement does not address whether these amendments may impact on
the right against retrospective penalties in article 15(1) of ICCPR. The
approach under international and comparative human rights law is to look at the
substance and the effect of the proceedings, rather than their label. Therefore,
it is possible for a civil regime which subjects a person to a high penalty and
is intended to be punitive or deterrent in nature to constitute a ‘criminal
penalty’ for the purpose of this right.
Right to social security and related rights
1.50
These amendments are likely to engage the right to social security as
superannuation benefits are likely to fall within the scope of 'social
security' for the purposes of article 9 of ICESCR. The statement of
compatibility does not address the impact these changes may have on article 9
of ICESCR.
1.51
A related question also arises in terms of the potential impact these
amendments may have on the right to privacy in article 17 of ICCPR (which
includes protection of the home and family) and the rights of family and children
(recognised in articles 23 and 24 of ICCPR and the Convention on the Rights of
the Child) particularly where the increased financial liability suffered may
risk a person’s family home or their ability to meet their family's basic
needs.
1.52
Before forming a view on whether these provisions are compatible with
human rights, the committee proposes to write to the Attorney-General to seek
further information on the following matters:
- Why it is considered necessary to clarify the current law and the
basis for considering that employees have had the expectation that they would
lose their entire employer funded superannuation contributions under the
existing scheme.
- Whether the amendments are consistent with the prohibition against
retrospective penalties in article 15(1) of ICCPR.
- Whether the amendments are consistent with the right to social
security in article 9 of ICESCR, including what, if any, impact they may have
on the right to privacy and the rights of family and children. For example, can
a court take into account the effect of a forfeiture or recovery order on a
family and children in the course of application proceedings?
- Whether these measures may amount to a disproportionate limitation on
rights, given that a person (and consequently their dependents) would lose their
entire employer funded superannuation contributions and not just the
contributions relating to the period during which the offence was committed.
- Whether the affected individual will be notified and have the
opportunity to be heard before a forfeiture or recovery is made.
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