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Introduced into the House of
Representatives on 1 November 2012
Portfolio: Families, Housing, Community Services and Indigenous Affairs
Committee view
1.2
The committee has written to the Minister for Families, Housing,
Community Services and Indigenous Affairs seeking clarification on a number of
issues before forming a view on the bill's compatibility with human rights.
Purpose of the bill
1.3
This bill is part of a package of three bills in relation to a national
scheme for gaming machines.
1.4
The bill provides for:
- precommitment systems for gaming machines;
- enables registered users to set a loss limit;
- requires gaming machines to display certain warnings;
- limits daily withdrawals from automatic teller machines located in
gaming premises (excluding casinos) to $250;
- requires that new machines manufactured or imported are capable of
supporting precommitment;
- establishes a Regulator to monitor and investigate compliance;
- provides for enforcement measures;
- establishes an Australian Gambling Research Centre within the Australian
Institute of Family Studies; and
- provides for the Productivity Commission to undertake two inquiries.
1.5
The bill sets out extensive new regulatory arrangements intended to
address problem gambling through the introduction of a system of voluntary
precommitment and related measures. The bill establishes arrangements under
which a person may register as a user and nominate a maximum amount that the
person is prepared to lose in a specified time period through certain forms of
gambling. The bill does not make gambling conditional on registration under
the scheme but recognises the possibility that this may occur in the future. In
order to take advantage of the registration system, a person will need to
provide certain personal information. This will be held electronically in such
a way that the person will not be able to exceed the nominated limit wherever
in a State or Territory he or she engages in gambling (unless the gambling
takes place in a casino or other place excluded from the operation of the
scheme).
1.6
The bill also includes a series of monitoring and enforcement measures
underpinning the operation of the scheme. These include entry, search and
seizure powers, the power to require a person to provide information or produce
documents, and the power to operate machines or electronic equipment on private
premises. The bill also creates a number of civil penalties and criminal offences,
a number of which are strict liability offences; it also provides for the
imposition of an evidential or legal burden on an accused person in a number of
cases.
Compatibility with human rights
1.7
The statement of compatibility identifies the potential impact of the
bill on the right to privacy (article 14 of the ICCPR) in so far as it requires
the provision of personal information. The statement also notes that the use of
reverse onus provisions engages the right to be presumed innocent until proven
guilty (article 14(2) of the ICCPR). However, it provides only a general
justification of the use of such provisions (which it states is limited to
civil penalty provisions), without a listing or discussion of the individual
provisions in the statement itself. Justifications of some reverse onus clauses
appear in the explanatory memorandum.
1.8
The statement of compatibility does not refer to a number of strict liability
offence provisions included in the bill (eg clauses 101, 115, 152) that may
give rise to issues of compatibility. Once again, there is some discussion in
the explanatory memorandum of the justifiability of those provisions.
1.9
The statement of compatibility does not, however, address any issues of
compatibility with human rights that may arise from the provisions of the bill
that relate to monitoring and enforcement, although there are justifications
offered for the apparent encroachments on human rights in the notes on some
individual clauses.
1.10
The committee:
- reiterates its position set out in Practice Note 1 that a
statement of compatibility should read as a stand-alone document;
- notes that, while the statement of compatibility adequately
addresses the issues relating to the right to privacy and personal information,
it would have been helpful for the general justification of reverse onus
provisions in the statement of compatibility to have been supplemented by
reference to individual provisions and for the statement to have addressed the
strict liability offences created by the bill; and
- further notes that there is no discussion in the statement of
compatibility of any human rights issues that may arise from the monitoring and
enforcement powers contained in the bill.
Compatibility issues
Right
to privacy
1.11
The right not to be subject to unlawful or arbitrary interference with
one’s privacy is guaranteed by article 17 of the ICCPR. The UN Human Rights
Committee in its General Comment 16 has stated:
The
gathering and holding of personal information on computers, data banks and
other devices, whether by public authorities or private individuals or bodies,
must be regulated by law. Effective measures have to be taken by States to
ensure that information concerning a person's private life does not reach the
hands of persons who are not authorized by law to receive, process and use it,
and is never used for purposes incompatible with the Covenant.[1]
1.12
To be a permissible interference with the right, a measure must be
provided by law, pursue a legitimate objective, have a rational connection to
the achievement of the purpose, and be proportionate to the achievement of that
goal.
1.13
To the extent that the precommitment registration scheme engages the
right to privacy, the scheme pursues the legitimate objective of offering
individuals the opportunity to participate in the scheme which may assist them
to limit their gambling losses. The statement of compatibility states that,
without the collection of the information, it would not be possible to identify
players to enable them to restrict their losses. The collection and storage of
the information has a rational connection to the achievement of this purpose.
There are a number of limitations on the use to which the information may be
put, and these are supported by provisions which make it an offence to deal
with information in a manner inconsistent with the statute.
1.14
The committee considers that the provisions of the bill which concern
the treatment of personal information appear compatible with the right to
privacy.
Presumption of innocence
1.15
The bill creates two categories of offences – civil penalties (Chapter
3), and criminal offences (Chapter 4). In relation to a number of civil
penalties and strict liability offences the bill includes reverse onus
provisions. Thus, if a person wishes to rely on certain excuses or exemptions,
the person bears an evidential burden in relation to the relevant facts (see,
eg clauses 58(7), and 65(3)).
1.16
Generally, consistency with
the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.
An
offence provision which requires
the defendant to carry an evidential or legal burden of proof with
regard to the
existence of some fact
will engage the presumption of innocence because a defendant’s failure to discharge the burden of proof
may permit their conviction despite reasonable doubt as to their guilt.
1.17
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 the 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. Human
rights case-law has established that relevant
factors to consider when determining if
a reverse burden provision is justified
include whether:
- the penalties are at the lower end of the scale;
- the offences arise
in
a regulatory
context
where
participants may
be
expected to know their duties and obligations; and
- the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.
1.18
While provisions which impose only an evidential burden are more likely to
be considered compatible with the presumption of innocence, they should still be properly justified, particularly
where the burden relates to an essential element of
the offence.
Civil penalties as ‘criminal offences’
1.19
Article 14(2) of the ICCPR states that everyone charged with a ‘criminal offence’ shall have the right to be presumed innocent until proved guilty according to law. Under international law the term
‘criminal offence’ includes not only offences or penalties that are classified
as a criminal offence under national law, but also other forms of penalties
that may be designated as civil penalties under domestic law. These penalties
attract the protections which the ICCPR sets out in relation to ‘criminal
offences’.
1.20
In order to determine whether a penalty designated ‘civil’ is a
‘criminal offence’, the approach under international and comparative
human rights law is to
consider 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 purposes of these rights.
1.21
Neither the explanatory memorandum nor the statement of compatibility
addresses the issue of whether the civil penalties might be considered
‘criminal offences’ within the meaning of article 14(2). However, the statement
of compatibility states generally in relation to each of the provisions that
requires the defendant to bear an evidential burden, that each of the cases
involve matters which are peculiarly within the knowledge of the defendant.
1.22
The committee considers that, if the civil penalty offences were
considered to be ‘criminal offences’ within the meaning of article 14(2) of the
ICCPR, the imposition of evidential burdens on the defendant in these cases
appear to be reasonable limitations on the presumption of innocence and to be
compatible with human rights.
Strict
liability offences
1.23
The bill creates a number of strict liability offences, which are
clearly criminal offences within the meaning of article 14(2). These include
the offence of failure to lodge a return in relation to levies that may be
payable under the scheme, without reasonable excuse (clauses 101(1) and (2))
and the failure by an authorised person to return an identity card (clause
115). These are not referred to in the statement of compatibility.
1.24
In each case the burden imposed on the defendant is an evidential one. The
explanatory memorandum appears to be incorrect in relation to the burden
imposed by one of these provisions. Clause 115(3) provides that the loss or
destruction of an identity card is a defence to a failure to surrender it. The
note on this subclause (explanatory memorandum, p 54) states that ‘the defendant
is required to prove, on the balance of probabilities, that they lost
their card or that the card was stolen, which is information that would be
within the particular knowledge of the defendant.’ However, the legislative note
to clause 115(3) states that, in accordance with subsection 13.3(3) of the
Criminal Code, the defendant bears an evidential burden in relation to this
matter. Subsection 13(3)(6) of the Criminal Code provides that an ‘evidential
burden, in relation to a matter, means the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist.’
1.25
While there is no discussion of the strict liability offences in the
statement of compatibility, the explanatory memorandum offers justifications
for the various strict liability offences.
1.26
The committee considers that the strict liability offences included
in the bill, which provide for defences to be made out by discharge of an
evidential burden, appear to be compatible with human rights.
Enforcement
powers
1.27
Chapter 7 of the bill provides for monitoring and investigation under
the scheme. It confers powers on authorised persons that include a power to
enter onto premises. It also confers a power on certain authorised persons to
require individuals to answer questions, and provides that it is an offence to
fail to do so (clause 148(3) and (4)). Similarly, clause 157 confers various
powers on the Registrar, including powers to require the production of
information, produce documents or to appear to answer questions. A failure to
comply with such requirements amounts to an offence (clause 157(6)). The
explanatory memorandum (p 70) states that clause 157(6) ‘does not abrogate the
common law privilege against self-incrimination’, though it provides no further
explanation of why this is so. No such statement is made in relation to clause
148 (explanatory memorandum, p 66).
1.28
These specific provisions and the powers of entry, search and seizure
potentially raise issues of compatibility with human rights, and these are not
addressed in the statement of compatibility nor in any consistent way in the
explanatory memorandum.
1.29
The committee proposes to seek clarification from the Minister as to
whether the monitoring and enforcement powers conferred by the bill are
consistent with human rights, in particular, but not limited, to whether the
powers to require a person to provide information, to answer questions and to
produce documents are consistent with the right not to incriminate oneself
(article 14(3)(g) of the ICCPR) and rights to respect for one’s privacy and
correspondence (article 17 of the ICCPR).
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