Key issues and committee view
2.1
The Selection of Bills Committee Report noted that the 'legislation has
complex implications for a range of portfolio agencies in Indigenous Affairs
that necessitates consultative processes to ensure [there are no] unintended
consequences'.[1]
Indigenous affairs legislation matters
2.2
Schedule 1 of the bill amends the Aboriginal and Torres Strait
Islander Act 2005 repealing the requirements for the responsible minister
to table Indigenous Business Australia's (IBA) corporate plan.[2]
The Department of the Prime Minister and Cabinet (PM&C) noted that
'repealing these provisions will remove the duplication of corporate plan
tabling under the Public Governance, Performance and Accountability Act 2013
(PGPA Act).[3]
2.3
IBA confirmed that it has been consulted in relation to this change and
that it 'reduces red tape and removes an unnecessary requirement that is
additional to those set out for corporate plans in the PGPA Act'.[4]
2.4
Schedule 2 amends the Aboriginal and Torres Strait Islander
Commission Amendment Act 2005 (ATSIC Amendment Act) to enable the
appropriate consenting authority to waive the exercise of its statutory consent
power by providing written notice to the organisation concerned that consent is
no longer required.[5]
PM&C explained:
Subitems 200(1) and (2) of the ATSIC Amendment Act require
that, where a person or body acquired an interest in land using money granted
by ATSIC, that person or body must not dispose of the interest without
obtaining the written consent from the appropriate consenting authority. The
normal mechanism for the Commonwealth to protect its interests in property is
through the use of a caveat on the land title deed.[6]
2.5
PM&C advised that the consenting authorities are the Commonwealth,
IBA and the Indigenous Land Corporation (ILC) and it is estimated there are
more than 4,500 assets held by Aboriginal and Torres Strait Islander
organisations across Australia affected by this legislation.[7]
2.6
PM&C stated that:
...any organisation which obtained property (generally land)
using ATSIC funds has to get permission from the Commonwealth to dispose or
deal in the property. The organisation cannot sell, lease, transfer or change
the use of their freehold title without the specific agreement of the
Commonwealth.[8]
2.7
Under the current legislation the Commonwealth cannot waive its
interests in these properties and can only act on request from the organisation
that owns the property. The proposed amendments will enable the Commonwealth
to:
...waive the exercise of its statutory consent power by
providing written notice to the organisation that consent is no longer required.[9]
2.8
PM&C explained the benefits of the proposed change:
This will support an increase in autonomy and economic
independence for Indigenous organisations, reduce red tape, and better enable
them to more freely use their land for economic development.[10]
2.9
PM&C also indicated that the Commonwealth will:
...adopt a risk-based approach to determine if its interests
should be waived. The key criteria to be applied to this decision will be: the
age and value of the original grant, value of the land to the Indigenous
estate, and the governance and organizational capability of the land holder.[11]
2.10
PM&C reported that the government has consulted with Indigenous
stakeholders, the ILC and IBA.[12]
2.11
The IBA indicated that it has no concerns with this change:
...on the basis that the waiver of the consent requirement is
at the discretion of the relevant consenting authority, its appropriateness in
relation to particular circumstances can be assessed on a case-by-case basis,
and that it enables Aboriginal and Torres Strait Islander organisations to have
greater control over assets and thus facilitates greater levels of economic
independence.[13]
2.12
PM&C provided answers to questions on notice confirming that:
-
the relevant assets are owned by the organisations as freehold
interests. The Commonwealth does not own them and the proposed amendments do
not give the Commonwealth any additional powers over the properties. Consenting
authorities do not currently, and will not under the proposed legislation have
the power to shift control of the assets to another entity;
-
once a consenting authority waives the consent rights in a
property, the rights cannot be reinstated; and
-
the intent of the amendment is to increase autonomy for affected
organisations and allow them to manage their own assets in a way that will
benefit their organisation and the community they represent.[14]
2.13
Schedule 3 repeals spent Indigenous Affairs portfolio legislation.[15]
Other issues
Auditor-General Act amendments
2.14
Schedule 4 of the bill proposes to amend the Auditor General Act 1997
to restore the ability of the Auditor-General, as an independent officer of the
Parliament, to present the Australian National Audit Office (ANAO) annual
report directly to the Parliament. Following the implementation of the Public
Governance Performance and Accountability (Consequential and Transitional
Provisions) Act 2014, the ANAO was included in the annual reporting
requirements for non-corporate entities where the annual report must be
presented to the responsible minister for tabling in Parliament.[16]
2.15
The Auditor-General will arrange for a copy of the annual report to be tabled
in both Houses of Parliament by 15 October or by the end of any further period
as granted under the Acts Interpretation Act 1901.[17]
2.16
The committee supports providing a legislative basis for the date that
annual reports are required to be tabled in Parliament. This differs from section
46 of the PGPA Act which prescribes a date for the provision of an annual
report to the responsible minister (the 15th day of the fourth month
after the end of the reporting period of the entity). However, it does not
provide for a timeframe for the minister to table the report in the Parliament.
The committee has detailed these timeframe issues in relation to the tabling of
annual reports most recently in its report on annual reports No 1 of 2017.[18]
2.17
The ANAO has indicated that the Auditor-General intends to continue to:
...ensure his annual report meets the [Public Governance,
Performance and Accountability Rule 2014 (PGPA Rule)] and prescribed
requirements for annual reports for non-corporate Commonwealth entities, with
the exception of presentation of the report to the Parliament through a
responsible Minister.[19]
2.18
The committee expects that in meeting the PGPA Rule and prescribed
requirements this will include complying with the Guidelines for the
Presentation of Documents to the Parliament prepared by PM&C which states:
As per past practice, it is expected that the responsible
Minister will present the report to each House of Parliament on or before 31
October. If Senate Supplementary Budget Estimates hearings are scheduled to
occur prior to 31 October, it is best practice for annual reports to be tabled
prior to those hearings. This ensures that annual reports are available for
scrutiny by the relevant Senate standing committee.[20]
2.19
As noted in the committee's reports on annual reports, the committee has
previously commended the ANAO for consistent early presentation of its annual
report.[21]
Royal Commissions Act amendments
2.20
Schedule 5 of the bill would amend the Royal Commissions Act 1902
(RC Act) to give commissioners the power to compel the provision of a written
statement; increase the penalty for failure to comply with a summons or notice
to produce; updates references so that penalties now expressed in dollar value
are instead expressed in penalty units; and allow the Secretary of the
Attorney-General's Department (AGD) to be given custody of Royal Commission
Records by regulation.[22]
Power to require information or
statement
2.21
The proposal to give Commissioners the power to compel the provision of
a written statement implements a recommendation of the report of the Royal Commission
into the Home Insulation Program, which supported the reason for a similar
recommendation made by the Australian Law Reform Commission (ALRC) in its 2009 Making
Inquiries Report. The ALRC considered that this power to require written
statements other than by way of oral evidence '...may reduce the need for
hearings and examinations and enable more flexible, less formal and more cost
effective inquiry procedures...'.[23]
2.22
The Attorney-General is responsible for 'Administrative support for
Royal Commissions and certain other inquiries'. AGD indicated:
The department supports the proposed amendment of the Royal
Commissions Act to provide for a new power for commissioners to issue a written
notice to require a person to give information or a statement in writing to a
royal commission. This new power would enable future royal commissions to use a
more streamlined approach to gathering evidence. The department also supports
the further proposed amendments that would ensure that the information gathered
under the new compulsive power will be treated in the same way as other
evidence gathered by royal commissions in the use of their current compulsive
powers.[24]
Increase in penalties
2.23
The proposal to increase the penalty for failure to comply with a
summons or notice to produce implements recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption, which
recommended the RC Act be amended 'to increase the penalties for a failure to
comply with a summons to attend, a failure to comply with a notice to produce,
a failure to be sworn or answer questions, and a failure or refusal to provide
documents to at least a maximum penalty of 2 years' imprisonment or a fine of
120 penalty units or both'.[25]
PM&C indicated that:
In making that recommendation, Commissioner Heydon observed
that the existing penalty for those offences is 'inadequate' and explained that
a penalty of up to 2 years' imprisonment is consistent with the penalty
applicable to a failure to comply with notices issued by the Australian
Security and Investments Commission.[26]
2.24
The proposal to express penalties in penalty units is consistent with
current legislation drafting practice.[27]
2.25
AGD indicated:
Two years imprisonment is consistent with the penalties available
for failure to comply with notices issued by the Australian Securities and
Investments Commission and the Australian Competition and Consumer Commission.
Royal Commissions are the highest form of public inquiry in
Australia and it is imperative that persons comply with requests made under the
Royal Commissions Act and that if they do not they are appropriately dealt with
under the law. As such the proposed increase in penalties is proportionate and
reasonable.[28]
Custodian of Royal Commission
records
2.26
The final proposal is to allow the Secretary of AGD to be given custody
of Royal Commission Records by regulation. PM&C indicated that:
Currently, the only Commonwealth Department of State that can
be given custody of Royal Commission records is the Department of the Prime
Minister and Cabinet (the Secretary is the prescribed person for that purpose).
The proposed amendment to add the Secretary of the Attorney-General's
Department gives more flexibility to determine an appropriate custodial agency
within the Commonwealth.[29]
2.27
AGD noted that:
...this provision would apply in relation to Royal Commission
records of Royal Commissions established before, on or after the commencement
of this amendment.[30]
Scrutiny of bills committee
2.28
In the Scrutiny Digest 5/17, the Scrutiny of Bills Committee draws three
areas of the bill to Senators' attention: reversal of evidential burden of
proof;[31]
privilege against self-incrimination;[32]
and significant penalties.[33]
2.29
In relation to the first two, the Scrutiny of Bills Committee is seeking
advice from the minister regarding the appropriateness of these provisions.
2.30
In relation to the third, Section 3 of the RC Act provides that a person
served with a summons to appear as a witness before a royal commission shall
not fail to attend unless excused or released. The bill seeks to increase the
maximum penalty for a failure to attend from six months' imprisonment or a $1,000
fine to two years' imprisonment with no possibility of a fine. In relation to this
provision, the Scrutiny of Bills Committee is seeking advice from the minister:
...as to why the penalty for offences of
failure to attend as a witness, produce a document or answer a question before
a Royal Commission is being substantially increased to up to two years imprisonment
(without the possibility of a fine) and whether this accords with comparable
Commonwealth offences.[34]
Human rights committee
2.31
The Explanatory Memorandum indicates that the bill is compatible with
human rights 'because to the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate'.[35]
2.32
The Parliamentary Joint Committee on Human Rights (PJCHR) also drew the increased
penalty for failing to attend a royal commission as a witness to the attention
of Senators. The PJCHR reports on the compatibility of the proposed measure
with the right not to incriminate oneself and points out:
By increasing the penalty for a witness who fails to attend
and give evidence to a royal commission in circumstances where the witness will
not be afforded the privilege against self-incrimination, the measure engages
and limits the right not to incriminate oneself. Current section 6P of the RC
Act permits a royal commission to disclose evidence relating to a contravention
of a law to certain persons and bodies including the police and the Director of
Public Prosecutions (DPP) in these circumstances.[36]
2.33
The PJCHR is seeking advice from the Minister for Indigenous Affairs as
to 'whether the measure is aimed at achieving a legitimate objective for the
purposes of international human rights law; how the measure is effective to
achieve (that is, rationally connected to that objective); whether the
limitation is a reasonable and proportionate measure to achieve the stated
objective; and whether a derivative use immunity would be workable'.[37]
2.34
The PJCHR also points out that by increasing the penalty for failure to
appear as a witness, in circumstances where the witness is not afforded the
privilege against self-incrimination, the measure engages and limits the right
to privacy. The PJCHR is seeking advice from the Minister for Indigenous
Affairs as to 'whether the measure is aimed at achieving a legitimate objective
for the purposes of international human rights law; how the measure 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'.[38]
2.35
The bill seeks to amend section 2(3B) of the RC Act to give a royal
commission the power to issue a notice requiring a person to give information
or a statement in writing. The statement of compatibility acknowledges that the
measure engages and limits the right to privacy but argues it is permissible on
the basis that:
The collection and use of that personal information is a
proportionate limitation of the right to privacy in pursuit of a legitimate
objective to ensure a Royal Commission can fully inquire into, and report on,
matters of public importance.[39]
2.36
The PJCHR is seeking advice from the Minister for Indigenous Affairs as
to 'whether the limitation is a reasonable and proportionate measure to achieve
the stated objective (including the availability of less rights restrictive
measures and the existence of relevant safeguards)'.[40]
2.37
Regarding the compatibility of the measure with the right not to incriminate
oneself, the PJCHR notes that 'the statement of compatibility does not
acknowledge that this right is engaged and limited so does not provide an
assessment as to whether the limitation is justifiable under international
human rights law.[41]
The PJCHR is seeking advice from the Minister for Indigenous affairs as to 'whether
the measure is aimed at achieving a legitimate objective for the purposes of
international human rights law; how the measure is effective to achieve (that
is, rationally connected to) that objective; whether the limitation is a
reasonable and proportionate measure to achieve the stated objective; and whether
a derivative use immunity would be workable'.[42]
2.38
The PJCHR has also asked the Minister for Indigenous Affairs whether a
foundational assessment of the RC Act could be undertaken to determine its
compatibility with human rights.[43]
Committee view
2.39
The committee notes that the submissions to the inquiry do not raise any
issues of concern in regards to the bill.
Recommendation 1
2.40
The committee recommends that the Senate pass the bill.
Senator James Paterson
Chair
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