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Introduced into the House of
Representatives on 10 October 2012
Portfolio: Attorney-General
Committee view
1.2
The committee seeks further clarification from the Attorney-General on how
the specific entry, monitoring, search, seizure and information gathering
powers in the bill are likely to impact on the right to privacy in article 17
of International Covenant on Civil and Political Rights (ICCPR) before forming
a view on the compatibility of the bill with human rights.
Purpose of the bill
1.3
This bill establishes a framework of standard regulatory powers
exercised by Commonwealth agencies.
1.4
The new framework predominantly deals with monitoring and gathering
evidence powers designed to determine
compliance with provisions of a triggering Act or regulation. The bill also provides for the use of civil penalties,
infringement notices and injunctions to enforce provisions
and the acceptance and enforcement of undertakings relating to compliance with provisions.
1.5
To activate the bill’s provisions, new or existing Commonwealth laws
must expressly apply the relevant provisions and specify other requisite
information such as persons who are authorised to exercise the applicable
powers.
Compatibility with human rights
1.6
According to the statement of compatibility, the bill arises out
of the government's clearer laws project, which aims to reduce complexity on
Commonwealth legislation by reducing its volume and increasing the consistency
and coherence of laws across the statute book.
1.7
The statement of compatibility states that the bill engages the
right to privacy in article 17 of ICCPR and the right to a fair trial in
article 14 of ICCPR. It however notes that 'as a law of general application the
human rights implications of its provisions will need to be addressed on a
case-by-case basis whenever the provisions are activated'.
1.8
The committee notes that statement does not appear to meet the
committee's expectations as it does not provide sufficient detail about the
operation of the individual provisions and how these may impact on human
rights.
Right to privacy
1.9
Without identifying the specific provisions in the bill which engage the
right to privacy in article 17 of ICCPR, the statement of compatibility states
that the bill 'protects against arbitrary abuses of power' for the following
reasons:
- Exercise of the entry, monitoring, search, seizure and information
gathering powers is conditional upon consent being given by the occupier of the
premises or prior judicial authorisation.
- Only judicial officers can issue a monitoring or investigation warrant
to enter premises and investigation warrants are time-limited.
- Authorised officers must show their identity card or copy of the warrant
to the occupier of the premises.
1.10
The statement concludes that these powers are 'reasonable, necessary and
proportionate to achieve a legitimate objective, without explaining the content
or scope of the powers, or how they may be considered to be aimed at a
legitimate objective.
1.11
The committee notes that as the bill is one of general application, it
would be difficult to reach a definitive view on its human rights compatibility
and each application of its provisions would need to be assessed on a case by
case basis. However, the overall likelihood of compatibility would be improved
by the inclusion of adequate safeguards to ensure that the relevant powers are,
as far as possible, appropriately targeted and circumscribed to minimise the risk
that they could be exercised inconsistently with human rights.
1.12
The committee proposes to write to the Attorney-General to seek
further clarification on how the specific entry, monitoring, search, seizure
and information gathering powers in the bill are likely to impact on the right
to privacy in article 17 of ICCPR, including the following matters:
- Whether consideration has been given to including safeguards to
ensure that the powers will be exercised in a manner that is proportionate to
its purpose. The bill would appear to apply the full range of powers to each
triggering law regardless of their necessity to the particular regulatory
scheme.
- Whether consideration has been given to including safeguards for the storage,
use and disclosure of any personal information collected through the exercise
of these powers.
Right to a fair trial
1.13
The statement of compatibility states that the bill engages the right to
a fair trial in article 14 of ICCPR through the creation of an infringement
notice scheme. An infringement notice can be issued by an infringement officer
for contraventions of a strict liability offence provision or a civil penalty
provision that is enforceable under the bill.
1.14
The statement explains that the scheme is consistent with the right to
a fair trial because it would allow a person to elect to have the matter heard
by a court rather than pay the amount specified in the notice.
1.15
The committee considers that these provisions are unlikely to raise
issues of inconsistency with article 14 of ICCPR.
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