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Quarantine
Charges (Imposition-General) Bill 2014
Quarantine
Charges (Imposition-Customs) Bill 2014
Quarantine
Charges (Imposition-Excise) Bill 2014
Quarantine
Charges (Collection) Bill 2014
Portfolio: Agriculture
Introduced: House of Representatives,
6 March 2014 Summary of committee
concerns
1.62
The committee
seeks further information on the compatibility of a number of measures in the
Quarantine Charges (Collection) Bill 2014 with the right to privacy, the right to
freedom of movement, and the right to a fair hearing. Overview
1.63
The Quarantine
Charges (Collection) Bill 2014 (the bill) forms part of a legislative package
intended to re-align Australia’s biosecurity and quarantine imports system with
an efficient and effective cost-recovery model, consistent with the Australian
Government Cost-Recovery Guidelines.
1.64
The bill
provides the authority to collect charges which are proposed to be imposed by
the Quarantine Charges (Imposition–General) Bill 2014, the Quarantine Charges
(Imposition–Excise) Bill 2014 and the Quarantine Charges (Imposition–Customs)
Bill 2014. The bill includes a number of measures to:
- provide that regulations
may be made to determine the manner in which quarantine charges are to be paid;
- provide the
Commonwealth with powers to refuse service to a person liable to a charge or
late payment fee, and to suspend or revoke permits;
- provide for
enforcement powers to deal with goods and vessels to recover unpaid charges and
late payment fees, to make directions in relation to any such goods and vessels
(with a related offence for engaging in conduct that contravenes a direction)
and to sell goods and vessels to recover outstanding debts;
- provide the
Commonwealth with the power to deal with goods and vessels that are abandoned
or forfeited; and
-
provide for the
remitting or refunding of fees in exceptional circumstances.
Compatibility with human
rights
Statement
of compatibility
1.65
The bill is
accompanied by a statement of compatibility which states that the bill engages
the right to privacy,[1]
the right to freedom of movement,[2]
the right to liberty (including the prohibition against arbitrary detention)[3]
and the right to work and rights in work.[4]
1.66
The statement of
compatibility concludes that the bill is compatible with the human rights and
that, to the extent that the bill may limit human rights, those limitations are
reasonable, necessary and proportionate to achieve the legitimate objective of
the bill.[5]
Committee
view on compatibility
Right
to privacy
1.67
In relation to
the right to privacy, the statement of compatibility notes that Article 17 of
the International Covenant on Civil and Political Rights (ICCPR) prohibits
arbitrary or unlawful interferences with an individual's privacy. However, this
right may be subject to permissible limitations which are provided by law and
are not arbitrary. In order for limitations not to be arbitrary, they must seek
to achieve a legitimate objective and be reasonable, necessary and
proportionate to achieving that objective.
1.68
The committee
notes that existing enforcement powers in Part VIA of the Quarantine Act
1908 (Enforcement) are applied to the bill (proposed section 41). The statement
of compatibility advises that the application of Part VIA is intended to protect
'the ability of the Commonwealth to collect quarantine charges when they are
due and payable'.[6]
While these enforcement provisions are recognised as engaging the right to
privacy, the statement of compatibility notes:
- the powers would
only be available to officers with the appropriate training, expertise and
authority;
- many of the
powers contain a test of reasonableness such that the powers would be exercised
only when a quarantine officer believes it is reasonable to do so; and
- the enforcement
provisions would be required to be exercised in compliance with the Privacy
Act 1988.[7]
1.69
While the
committee notes that the above factors appear relevant to an assessment of the
compatibility of the bill with the right to privacy, it notes that there is no information
provided as to the specific powers contained in Part VIA of the Quarantine Act,
or their engagement and compatibility with human rights in the context of their
application to the bill. The committee's usual expectation is that, where a
bill seeks to incorporate the provisions of another Act, the statement of
compatibility identifies the substantive elements of the incorporated
provisions, and their potential engagement and compatibility with human rights.
1.70
The
committee intends to write to the Minister to seek further information on the
compatibility of Part VIA of the Quarantine Act 1908, as applied in the
context of the bill, with the right to privacy.
Right
to freedom of movement
1.71
In relation to
the right to freedom of movement, the statement of compatibility notes that
Article 12 of the ICCPR includes the right to move freely within a country for
those lawfully within the country, the right to leave any country and the right
of citizens to enter a country. The right may be restricted in certain
circumstances, including where the objective of the restriction is to protect
national security, public order, public health or morals or the rights and
freedoms of others. However, any such restriction must be necessary and
proportionate to protect the purpose for which it is imposed, and should be as
least intrusive as possible to achieve that purpose.[8]
1.72
The statement of
compatibility identifies the proposed power of the Director of Quarantine to
detain a vessel the subject of a charge (proposed section 24) as engaging the
right to freedom of movement, insofar as the detention of a vessel may restrict
the movement of individuals relying on that vessel to move.[9]
However, it is anticipated that the detention of non-commercial vessels would
be 'extremely rare', and that it would accordingly be 'highly unlikely' that an
individual's freedom of movement would be affected.[10]
The measure is therefore characterised as necessary to enforce the
Commonwealth's capacity to recover costs for the services that it has provided,
and proportionate to the potential risk to the Commonwealth's ongoing capacity
to provide biosecurity and quarantine services.
1.73
As set out
above, the bill applies Part VIA of the Quarantine Act (proposed section 41). These
enforcement provisions are recognised as engaging the right to freedom of
movement, with the statement of compatibility noting:
- the powers would
only be available to officers with the appropriate training, expertise and
authority; and
- many of the
powers contain a test of reasonableness such that the powers would be exercised
only when a quarantine officer believes it is reasonable to do so.
1.74
While the
committee notes that the above factors appear relevant to an assessment of the
compatibility of the bill with the right to freedom of movement, it notes that
there is no information provided as to the specific powers contained in Part
VIA of the Quarantine Act, or their engagement and compatibility with human
rights in the context of their application to the bill. The committee's usual
expectation is that, where a bill seeks to incorporate the provisions of another
Act, the statement of compatibility identifies the substantive elements of the
incorporated provisions, and their potential engagement and compatibility with
human rights.
1.75
The
committee intends to write to the Minister to seek further information on the
compatibility of Part VIA of the Quarantine Act (Enforcement), as applied in
the context of the bill, with the right to freedom of movement.
The
right to a fair hearing
1.76
Proposed new
section 14 of the bill provides for the power to suspend or revoke a number of
approvals or authorisations made under the Quarantine Act where a person has not
paid a quarantine charge or late payment fee which is due and payable. As set
out in the statement of compatibility, this measure may have implications for
the right to work.[11]
The committee notes that a decision to suspend or revoke a permit under
proposed section 14 will not be subject to merits review (although judicial
review will be available).[12]
1.77
In the
committee's view, the non-availability of merits review for decisions under
proposed section 14 engages the right to a fair hearing, which provides that in
the determination of rights and obligations, a person is entitled to a fair and
public hearing by a competent, independent and impartial tribunal. [13]
1.78
The non-availability
of merits review is justified in the explanatory memorandum accompanying the
bill on the basis that, as the Quarantine Act does not contain merits review
mechanisms, it would be inappropriate to provide for such review mechanisms in
the bill.[14]
1.79
While the
committee accepts that there may be some administrative or regulatory benefits
to a degree of conformity between aspects of the bill and the Quarantine Act,
there is insufficient information in the statement of compatibility to allow an
assessment of whether preclusion of merits review is consistent with the right
to a fair hearing in this case. The committee notes that the fact that a
particular approach is or is not taken in a primary Act or elsewhere is not in
and of itself a sufficient reason for justifying limitations on rights.
1.80
The
committee intends to write to the Minister for Agriculture to seek further
information on the compatibility of the bill with the right to a fair hearing, particularly
the justification for the non-availability of merits review for a decision
under proposed section 14, including:
- why it is
necessary to preclude merits review for such decisions; and
- how
preclusion of merits review in relation to such decisions is proportionate to
achieving a legitimate objective, including all relevant procedural and other
safeguards, and details of any less restrictive policy measures that may have
been available or were considered in the development of the bill.
Right to a
fair trial – presumption of innocence
1.81
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. 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.
1.82
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, such offences must be
reasonable, necessary and proportionate to that aim.
1.83
The committee
notes that the bill proposes to introduce two new offences for moving or
interfering with withheld goods[15]
and moving or interfering with a detained vessel.[16]
Both of these offences set out an exception for where a person is authorised to
engage in the conduct under the proposed new Act, the Quarantine Act or under
another Australian law. In both cases, the defendant bears an evidential burden
in relation to whether their conduct is authorised.[17]
1.84
The
committee considers that the use of reverse burdens as proposed by the bill is
unlikely to raise issues of incompatibility with the presumption of innocence.
In particular, the burdens placed on the defendant are evidential burdens only
(as opposed to a legal burden) and relate to matters that appear to be likely
to be within the defendant's knowledge.
1.85
However,
the committee emphasises its expectation that statements of compatibility
should include sufficient detail of relevant provisions in a bill which impact
on human rights to enable it to assess their compatibility. This includes
identifying and providing justification where a reverse burden of proof is
imposed.
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