CHAPTER 2
UNDUE TRESPASS ON PERSONAL RIGHTS AND LIBERTIES
Overview of application of criterion set out in Standing Order 24
(1)(a)(i)
Legislation might 'trespass unduly on personal rights and liberties'
in a number of ways. Some examples follow.
(a) It might have a retrospective and adverse affect on those to whom
it applies.
(b) It might be not only retrospective but its proposer, invariably the
Government, might treat it as law even before it is enacted, usually from
the time the intention to introduce it into Parliament is made public.
The process is often called legislation by press release because
the Government often takes action from the time the intention to introduce
it is announced in the media as if the legislation has already been passed.
(c) It might abrogate the common law right people have to avoid incriminating
themselves and to remain silent when questioned about an offence in which
they were allegedly involved.
(d) It might reverse the common law onus of proof and require people
to prove their innocence when criminal proceedings are taken against them.
(e) It might impose strict liability on people when making a particular
act or omission an offence.
(f) It might give authorities the power of search and seizure without
them needing to obtain a judicial warrant prior to exercising it.
(g) It might take away people's privilege to keep confidential their
professional communication with their legal advisers.
(h) It might equip officers with oppressive powers for use against a
vulnerable class of people.
(i) It might take away Parliament's right to obtain information from
the Executive.
Explanations and examples of the above are detailed in order below.
(a) Retrospectivity
Legislation has retrospective effect when it makes a law applicable to
an act or omission which took place before its enactment.
Criticism of the practice goes back several centuries. In 1651, in his
Leviathan, Thomas Hobbes said:
No Law, made after a Fact done, can make it a Crime: because if the
Fact be against the Law of Nature, the Law was before the Fact; and
a Positive Law cannot be taken notice of, before it be made; and therefore
cannot be Obligatory.
He went on to say:
Harme inflicted for a Fact done before there was a Law that forbad
it, is not Punishment, but an act of Hostility: For before the Law,
there is no transgression of the Law: But Punishment supposeth a fact
judged, to have been a transgression of the Law; Therefore Harme inflicted
before the Law made, is not Punishment, but an act of Hostility. [1]
In 1765, in his Commentaries, Sir William Blackstone said:
...a base resolution, confined in the breast of the legislator, without
manifesting itself by some external sign, can never be properly a law.
It is requisite that this resolution be notified to the people who are
to obey it.
...
It may be notified by writing, printing, or the like; which is the
general course taken with all our acts of parliament. Yet, whatever
way is made use of, it is incumbent on the promulgators to do it in
the most public and perspicuous manner; not like Caligula, who (according
to Dio Cassius) wrote his laws in a very small character, and hung them
up upon high pillars, the more effectually to ensnare the people.
Blackstone went on to say:
There is still a more unreasonable method than this, which is called
making of laws ex post facto; when after an action is
committed, the legislator then for the first time declares it to have
been a crime, and inflicts a punishment upon the person who has committed
it; here it is impossible that the party could foresee that an action,
innocent when it was done, should be afterwards converted to guilt by
a subsequent law; he had therefore no cause to abstain from it; and
all punishment for not abstaining must of consequence be cruel and unjust.
All laws should be therefore made to commence in futuro, and
be notified before their commencement; which is implied in the term
“prescribed”. But when this rule is in the usual manner
notified, or prescribed, it is then the subject's business to be thoroughly
acquainted therewith; for if ignorance, of what he might know,
were admitted as a legitimate excuse, the laws would be of no effect,
but might always be eluded with impunity. [2]
The Committee endorses the traditional view of retrospective legislation.
It will draw attention to bills seeking to have an impact on a matter
which has occurred prior to their enactment. It will comment adversely
where they have a detrimental effect on people. However it will not be
critical where:
- apart from the Commonwealth itself they are for the benefit of those
they affect; [3]
- they do no more than effect a “technical amendment” [4]
or correct a “drafting error” [5];
- they implement a tariff measure [6] in respect
of which the relevant minister has published a date from which the measure
is to apply.
Explanatory memorandum
In the Committee's view, where there is a proposal for legislation to
have retrospective effect, the explanatory memorandum should set out in
detail the reasons that retrospectivity is sought.
Cases Where the Issue of Retrospectivity Arose
(i) Customs and Excise Legislation Amendment Bill 1995
The committee dealt with this bill in Alert Digest No. 7 of 1995. A purpose
of this bill was to reduce the range of those entitled to benefits under
the Diesel Fuel Rebate Scheme (DFRS). It was to operate both prospectively
- which did not concern the Committee - and retrospectively - which did.
The explanatory memorandum which accompanied the bill said that the DFRS
was aimed at giving assistance to those genuinely engaged in farming or
mining or intimately bound up with those activities.
The explanatory memorandum said that benefits under the DFRS should go
only to those whom 'an ordinary person' would classify as 'farmers' or
'miners'. According to the explanatory memorandum, over some years courts
and tribunals had handed down decisions which expanded the range of persons
entitled to a rebate under the DFRS. In the view of the explanatory memorandum,
it was contrary to Parliament's intention for this expansion to take place
and the bill sought to correct the situation.
The Committee held that the relevant provisions of the Customs Act which
the bill sought to amend bore the meaning given to them by the Courts
which have traditionally had the constitutional function of interpreting
the law. To change those provisions by legislation was not to clarify
them but to alter their impact and, if that impact rebounded on events
occurring prior to the enactment of the bill, then it had retrospective
effect.
The Committee sought the Minister's advice about the matter.
In a comprehensive response the Minister dealt with the history of the
bill. It appeared that the explanatory memorandum had given the wrong
impression in suggesting that over some years the courts had handed down
decisions widening the range of persons entitled to benefits under the
DFRS. In fact the decisions giving rise to the legislation were recent
and the bill had been introduced expeditiously.
The Minister addressed the issue of retrospectivity as follows:
The Government accepts the principle that was highlighted in the Committee's
comments, which quite properly presumes against the retrospective operation
of legislation on the ground that those that are subject to the law
are entitled to be treated according to what the law says at the relevant
time and according to what the law means at that time as declared by
the courts.
That leads at first instance to a proposition that the 3 amendments
involved here should only commence prospectively.
...
In introducing these amendments, the Government has maintained that
they are intended to clarify the ambit of the Scheme as it was introduced
in 1982. The Government is firmly of the view that the Scheme was never
intended to pay rebate on diesel fuel used in activities that might
only loosely be described as encouraging mining operations or primary
production in a general sense. Rather, in the Government's view, the
Scheme was designed to pay rebate to primary producers who use diesel
fuel in the act of growing and gathering in of crops, or the rearing
of livestock, and in other activities that are sufficiently connected
with agriculture or, in relation to mining operations, to pay rebate
for fuel used in the act of exploring or prospecting for minerals, and
their subsequent mining and beneficiation, or in the liquefaction of
natural gas or the production of common salt.
The 3 amendments proceed on that basis. Is there a case, however, for
retrospectivity to accommodate that? [7]
The Minister continued:
I believe there is in this particular instance, for the following reason.
The Scheme permits claims for rebate in respect of fuel purchased up
to 3 years prior to the receipt of an application for rebate, and, in
the particular circumstances where a notice of intention to lodge a
claim was made prior to 1 July 1994, there is an entitlement to make
claims in respect of fuel purchases all the way back to 1 August 1986.
This generous ability to back-claim can lead to a possibility of a windfall
gains situation in circumstances where a test case claim might in fact
be successful because of an unexpected result in a Court or Tribunal
challenge. [8]
The Minister then discussed in detail each of the three amendments. He
concluded:
In the 3 proposed areas for amendment, I am of the view the Government
has acted as expeditiously as possible to contain the effect of the
recent Court and Tribunal decisions which are arguably removing the
boundaries of the Scheme. I also am of the view the containment measures,
if introduced retrospectively as proposed, would not trespass on the
legitimate expectations or rights of diesel fuel claimants. They will,
however, maintain ineligibility for activities which only recently have
been brought within the Scheme as a result of test case judgments and
which stand to advantage, in a windfall scenario, claimants for fuel
purchases well before it was even contemplated there may be grounds
for any challenge to rebate eligibility.
In its Eleventh Report of 1995, the Committee thanked the Minister
for his response, which had been of great assistance to the Committee.
The Committee, having set out both its concerns and the Minister's response,
stated in accordance with its usual practice that whether the retrospective
aspects of the bill unduly trespassed on personal rights was ultimately
a matter for the Senate.
The Committee, therefore, continued to draw the attention of Senators
to these provisions as a possible undue trespass on personal rights and
liberties.
(ii) Crimes Amendment (Controlled Operations) Bill 1995
The Committee dealt with this bill in Alert Digest No. 11 of 1995.
The bill followed a decision of the High Court in Ridgeway v R [10]
in which it held that, where authorities joined in a crime to obtain evidence
against a fellow perpetrator, then any material so obtained by them was
inadmissible in the prosecution of any charges brought against him or
her. The legislation sought to reverse this position by enabling the introduction
of such evidence.
Because of transitional provisions in the bill it had retrospective effects
and this caused the Committee to raise the matter with the Minister. He
gave the following explanations:
Without the transitional provisions, the evidence available to prosecute
a number of pending cases relating to serious Commonwealth narcotics
trafficking offences, punishable by 25 years to life imprisonment, will
be in serious jeopardy. In at least two cases, there is no alternative
State charge, and in most others, the evidence available to support
State charges is greatly inferior to that available to support the Commonwealth
charges in jeopardy because of Ridgeway.
Furthermore, the sentences likely to be imposed on up to ten alleged
narcotics traffickers, if convicted, are likely to be less than would
otherwise have been the case, because of the need to avoid charges reliant
on Ridgeway type evidence.
While the transitional provisions have been incorporated in the Bill
to preserve necessary evidence of these serious offences, they have
been given as narrow scope as possible, mindful of the importance of
minimising retrospectivity. [11]
The Minister also pointed out:
(t)he provisions only apply to evidence relating to a Commonwealth
narcotics trafficking offence, obtained in the course of an investigation
relating to such an offence. Such evidence is only preserved in relation
to a limited range of unlawful conduct by police, directly relating
to a controlled importation in accordance with then accepted procedures.
In particular, the prosecution must show that the unlawful importation
was carried out with the knowledge and approval of the Australian Federal
Police and Australian Customs Service, in accordance with a 1987 Ministerial
Agreement. [12]
In its Thirteenth Report of 1995, the Committee discussed
the need for legislation to establish the proper balance between the public
interest in protecting personal rights and liberties and the public interest
in ensuring that crime is detected and suppressed.
The Committee made the point that legislation can impose a disadvantage
on a person by retrospectively condoning activity unlawful at the time
of its commission just as it can by retrospectively making illegal what
was lawful when carried out.
(iii) Migration Legislation Amendment Bill (No. 2) 1994
The Committee dealt with this bill in Alert Digest No. 10 of 1994.
This bill was another example of legislation retrospectively making lawful
an action which at the time of its commission was illegal and doing so
to the detriment of a number of people.
The background
The men, women and children who were the occasion of this legislation
came to Australia as boat people. As such they were taken into custody
by the Commonwealth Government pending the determination of their future.
They were kept detained over a number of years.
Subsequent to these people being taken into custody, the High Court,
in Chu Kheng Lim v The Minister for Immigration (1992) 176 CLR
1, said that part of the period of their detention by the Commonwealth
was unlawful. Given that they had been illegally imprisoned they had a
right of action for damages at common law.
To avoid the risk of having to pay out to the boat people what it saw
as excessive damages the Commonwealth government had section 54RA inserted
into the Immigration Act 1958.
This took away any common law right the detainees may have had to recover
damages for unlawful imprisonment and gave them instead a statutory entitlement
to sue for compensation limited to $1.00 for each day they were wrongfully
held in custody.
Doubts arose whether section 54RA was constitutionally valid. The question
was whether, in legislating to take away a person's right to sue for damages
at common law, Parliament was enacting a law acquiring his or her property
on other than just terms. This would be in contravention of section 51
(xxxi) of the Constitution.
The Government saw the doubtful validity of section 54RA as raising a
problem in need of a solution. Accordingly, it introduced Migration Legislation
Amendment Bill (No. 2) 1994 into the Parliament. This sought to retrospectively
make lawful the detention which was illegal at the time it was imposed.
Were this to be achieved the boat people would have no cause of action
at common law because their imprisonment had been validated.
The Government's justification for retrospectivity
The thrust of the Government's arguments in support of the bill was three
fold:
- the bill prevented the boat people gaining a windfall which they might
otherwise do by winning a substantial award of damages for false imprisonment;
- the bill brought the law into conformity with the Government's understanding
of how it operated during the time the boat people were held in custody;
- none of the boat people had sought to challenge the lawfulness of
their detention prior to the decision of the High Court.
The Committee rejected the proposition that a person who obtained an
award of damages at common law for wrongful imprisonment was receiving
a windfall. He or she would be exercising a right the likely outcome of
which could not be labelled fortuitous despite the Government's wish to
do so. Both citizens and aliens should be deprived of their liberty only
in accordance with proper process and both should have equal access to
compensation.
The Government's contention that its understanding of the law should
be retrospectively legislated for did not find favour with the Committee.
Clearly people are entitled to go about their lives on the basis of what
the law actually means and should not be obliged to do so according to
what the Government thinks it ought to mean. The Courts interpret the
law and what they say it means is what it is.
The fact that none of the boat people who were unlawfully detained challenged
the Government about their imprisonment until after the decision of the
High Court did not justify the legislation. It was for the appropriate
authorities to ensure that they acted in accordance with the law.
Government's reaction
The Committee raised all these issues with the Minister who nevertheless
persisted with the arguments the Government had advanced in favour of
the bill. However, in the end, the Minister withdrew the legislation.
Subsequently the Government introduced a second bill (Migration Legislation
Amendment Bill (No. 3) 1994) which, though in some ways different from
the first, persisted with the strategy of validating the unlawful imprisonment
of the boat people. The Committee maintained its objections to the strategy.
The Senate voted down the second bill on 9 November 1994.
The Government introduced a third bill (Migration Legislation Amendment
Bill (No. 3) 1994 [No. 2] in December 1994 which again provided for
the strategy of retrospectively making lawful the illegal detention of
the boat people and once more the Committee put forward its concerns with
the Government's action. On this occasion, however, Parliament passed
the legislation.
(b) Legislation by Press Release
Legislation by press release occurs where a bill is not only retrospective
but is treated by its proposer, invariably the Government, as being the
law from the time the intention to have it passed through Parliament is
made public, usually by press release. Whether the bill aims at having
people do or not do certain things, if passed, it will impact upon their
conduct from the time the proposal for its introduction into Parliament
is announced.
The Committee draws attention to legislation by press release. The fact
that it is to have effect only after the intention to introduce it is
made public is no justification for it being given force prior to its
enactment. The expectations of its proposer that Parliament will subsequently
pass the legislation and that the people it is aimed at will comply with
its provisions in the meantime are presumptuous.
As a general principle the Committee disapproves of legislation by press
release both because, if enacted, it will have retrospective effect and
because its proposer, invariably the Government, treats its provisions
as the law in the meantime. The Committee is concerned when the Executive
carries out its administration as if legislation had been passed whereas
its enactment is yet to take place. Publishing an intention to process
a bill through Parliament does not convert its provisions into law. Only
Parliament can do that.
In its 1986-87 Annual Report the Committee stated:
...the practice of 'legislation by press release' carries with it the
assumption that citizens should arrange their affairs in accordance
with announcements made by the Executive rather than in accordance with
the laws made by Parliament. It treats the passage of the necessary
retrospective legislation 'ratifying' the announcement as a pure formality.
It places the Parliament in the invidious position of either agreeing
to the legislation without significant amendment or bearing the odium
of overturning the arrangements which many people may have made in reliance
on the Ministerial announcement. [13]
The Committee went on to say:
Moreover, quite apart from the debilitating effect of the practice
on the Parliament, it leaves the law in a state of uncertainty. Persons
such as lawyers and accountants who must advise their clients on the
law are compelled to study the terms of the press release in an attempt
to ascertain what the law is. As the Committee has noted on two occasions,
one press release may be modified by subsequent press releases before
the Minister's announcement is translated into law. The legislation
when introduced may differ in significant details from the terms of
the announcement. The Government may be unable to command a majority
in the Senate to pass the legislation giving effect to the announcement
or it may lose office before it has introduced the relevant legislation,
leaving the new Government to decide whether to proceed with the proposed
change to the law. [14]
The Committee has noticed that since it made these comments the use of
legislation by press release appears to have declined. However it still
occurs. There were examples of it during the 37th Parliament.
Cases Where the Issue of Legislation by Press Release Arose
(i) Taxation Laws Amendment Bill (No. 5) 1994
On 12 January 1994 the Assistant Treasurer announced by press release
that the Government would make amendments to the Income Tax Assessment
Act 1936. They were to operate from that date. In fact the relevant
legislation was not introduced into Parliament until 7 December 1994,
almost 11 months later.
As the Committee saw things, this was an example of legislation by press
release and fell within the resolution of the Senate of 8 November 1988.
That resolution deals with taxation legislation only and states:
...where the Government has announced, by press release, its intention
to introduce a Bill to amend taxation law, and that Bill has not been
introduced into the Parliament or made available by way of publication
of a draft Bill within 6 calendar months after the date of that announcement,
the Senate shall, subject to any further resolution, amend the Bill
to provide that the commencement date of the Bill shall be a date that
is no earlier than either the date of introduction of the Bill into
the Parliament or the date of publication of the draft Bill. [15]
The Committee drew the Minister's attention to the Taxation Laws Amendment
Bill (No. 5) 1994 and pointed out that more than 6 months had elapsed
between the press release of 12 January 1994 announcing its proposal and
the introduction of the legislation on 7 December 1994. [16]
The Assistant Treasurer, however, was able to assure the Committee:
The amendments do not breach the relevant resolution, however, because
draft legislation and explanatory notes relating to these measures were
circulated for public comment on 12 July 1994. Copies of the press release
and associated documents are attached. Interested parties were given
until 12 August to comment on the draft provisions and, in the event,
no comments were received. The press release indicated that the provisions
were expected to be included in a Bill to be introduced into the Parliament
later in 1994. [17]
The Committee thanked the Assistant Treasurer for this response. The
draft legislation was published on the very last day which satisfied the
Senate's resolution. The Committee would have been better able to carry
out its function had it been informed earlier about the date of publication
of the draft bill. This could have been done in the explanatory memorandum.
(ii) Migration Legislation Amendment Bill (No. 2) 1995
On 30 December 1994 the relevant Minister announced the Government's
intention to introduce into Parliament the Migration Legislation Amendment
Bill (No. 2) 1995.
This bill sought to apply the then recently enacted safe third country
provisions of the Migration Act 1958 to some boat people. These
were some refugees from Vietnam who had gone to the People's Republic
of China and then had left there and arrived in Australia by boat early
in December 1994. Subsequent to 30 December 1994, but before the bill's
enactment, they lodged claims for protection visas.
The bill provided that applications by members of this group made, but
not granted, during the period 30 December 1994 to 25 January 1996 would
cease to be valid on the commencement of the legislation and would be
treated as having been made after the commencement.
The Government treated the proposed legislation as operative from the
date of the Minister's press release and did not wait till the time of
its enactment.
The Committee dealt with this legislation in Alert Digest No. 2 of
1995.
The Committee made clear its consistent view that legislation by press
release is unsatisfactory. Such legislation is retrospective and, when
it adversely affects personal rights, is unfair. Where Government treats
its provisions as operative before they are enacted the question arises
as to whether the Parliament will ultimately pass them into law or, if
it does so, then whether they will be in their original form.
Parliament comes to a consideration of the legislation knowing that the
Executive has for some time been pursuing a course of conduct determined
by the presumption that it would be passed. This could become a factor
in the consideration given to the matter.
The Committee pointed out that the Senate will at times accept legislation
by press release where this relates to the imposition of taxation. It
referred to the resolution of 8 November 1988. [18]
In the present instance the proposal did not relate to taxation. Its
intention was to take away the rights certain asylum seekers held under
Australian law.
The Committee, therefore, drew Senators' attention to the bill, as the
view could be taken that it trespassed unduly on personal rights and liberties,
in breach of principle 1(a)(i) of the Committee's terms of reference.
The Minister responded as follows:
While noting the Committee's concerns, the Government does not consider
that the legislation detracts in any way from Parliament's ability,
capacity and inclination to amend legislation. The Government considers
it is always open for the Parliament to enact legislation it considers
appropriate in the circumstances, including commencement date of any
such legislation. Further, the Government notes it is the Parliament
which has legislative power under the Constitution and that the Parliament
is neither obliged nor required to directly translate the intentions
of the Cabinet or Executive into law.
In this instance, the Government considers the retrospective nature
of subsection 4(1) is more than a matter of convenience. The Government's
view is that the proposed amendments are necessary to maintain the integrity
and efficiency of Australia's migration, entry and humanitarian programs.
Prompt action was required on the part of the government because of
the recent arrival of persons who have been resettled and given protection
in the People's Republic of China. As noted above, a Memorandum of Understanding
was signed between Australia and the PRC on 25 January 1995. The critical
aspect of the agreement is that, upon identification of the people concerned,
the PRC has agreed to continue to provide protection to those persons.
[19]
The Committee thanked the Minister for his response and made no further
comment. Its treatment of this bill underlines the Committee's role as
one of alerting Senators to possible breaches of its terms of reference:
while legislation by press release may be a trespass on personal rights,
whether in a particular case it unduly does so is a decision that is properly
resolved by debate in the chamber.
(c) Abrogation of the Privilege Against Self-Incrimination
Legislation which interferes with the common law privilege against self-incrimination
trespasses on personal rights and liberties. Such legislation denies people
the right to decline to answer a question on the grounds that the reply
may tend to incriminate them. Any legislation which abrogates the right
to silence gives the Committee grave concern.
At the same time, the Committee is conscious of the need good government
has for enough information to carry out properly its duties to the community.
There are occasions where this can be obtained only by compulsion. What
happens where the Government seeks the needed information from people
under compulsion but the supply of it will incriminate them?
Those proposing a bill which will lessen or remove a person's right to
silence usually do so on the basis that good administration in the particular
circumstances requires the relevant officials to have possession of information
which can only be obtained or can best be obtained by forcing him or her
to answer questions even though this means providing evidence showing
he or she is guilty of an offence.
The test
During the 37th Parliament the Committee considered that a proper balance
had to be struck between the need for the relevant authorities to obtain
sufficient information to enable them to carry out properly their functions
and the need for the community to guard against infringing the right people
have at common law not to incriminate themselves.
The Committee recognised that judging whether taking away the right to
silence unduly trespassed on personal rights and liberties required the
Committee to consider whether the public benefit to be gained outweighed
the loss of that right.
The Committee does not see the right to silence as absolute but must
be convinced that the public benefit which will follow from its negation
will decisively outweigh the resultant harm before accepting legislation
which produces that effect. For example, when dealing with the Prawn Export
Promotion Bill 1994, the Committee wrote:
Further, the Committee is concerned about the appropriateness of abrogating
the right not to incriminate oneself in the circumstances dealt with
in this bill. While acknowledging that in some circumstances, such as
national security or irreversible damage to the Great Barrier Reef,
the need to obtain information may be seen as prevailing over the right
not to incriminate oneself, the Committee questions whether the advantages
to be gained by this provision outweigh the trespass on personal rights
in abrogating that right. [20]
Using peoples' forced statements against them
A person forced to make a statement might have it used against him or
her in two ways. Its contents might be put into evidence in criminal proceedings
against him or her. This would be the direct use of it against its maker.
Secondly, it might not be produced as evidence itself but used
as a starting point to gather other material which is then used in criminal
proceedings against the maker. This would be an indirect or derivative
use of the statement.
The Committee's stance
During the 37th Parliament the Committee emphasised the need to balance
the public benefit of obtaining needed information against the public
interest of maintaining personal rights in judging whether or not an abrogation
of the right to silence trespassed unduly on personal rights and liberties.
One of the factors in this consideration is the subsequent use that may
be made of the incriminating disclosures. The Committee found that the
public good could more easily prevail where the loss of the private right
was mitigated because both the direct and indirect use of the forced disclosure
was prohibited.
The Committee was also concerned with what exceptions ought to be made
to the immunity from prosecution which may be granted when the right to
silence is abrogated.
It sought to limit the exceptions to that immunity. A forced disclosure
should be allowed to be used in criminal proceedings only in a prosecution
for giving false or misleading information when compelled to make a statement.
These issues are illustrated in the following examples.
Cases Where the Issues Arose
(i) Prime Minister and Cabinet (Miscellaneous Provisions) Bill 1995
The Committee had occasion to consider the proper balance to be struck
between the need for relevant authorities to have adequate information
to effectively carry out their responsibilities and the need to safeguard
the common law right to silence when it dealt with proposed amendments
to the Aboriginal Councils and Associations Act 1976.
The proposed amendments first appeared in the Aboriginal Councils and
Associations Legislation Amendment Bill 1994 [21]
and later, in revised form, they re-appeared as amendments the Government
proposed to include in the Prime Minister and Cabinet (Miscellaneous Provisions)
Bill 1995. [22]
The amendments required people to give certain information to the relevant
authority even though this included material suggestive of their being
guilty of an offence. The legislation prohibited the utilisation of that
material in any criminal proceedings or proceedings for the imposition
of a penalty but did not preclude the use in such proceedings of evidence
later gained by investigators as a result of learning about that material.
Accordingly, while the legislation prevented the use as evidence in court
of information forcedly gained directly from a person, it sought to remove
the derivative use immunity, for which the existing Act provided.
The Aboriginal Councils and Associations Act 1976 as unamended,
in particular sections 39, 60, and 68 thereof, prohibited the use in criminal
proceedings of material gained both directly and indirectly by authorities
as a result of a person being forced to surrender information which tended
to incriminate him or her.
When the amendments were first proposed in 1994, the Committee sought
the Minister's advice about the matter. The Minister responded by saying
that on 22 September 1994 the Aboriginal and Torres Strait Islander
Commission had sought to have debate on the proposed amendments postponed
indefinitely to enable a complete review of the Aboriginal Corporations
Law to take place and had informed the Prime Minister of this. He said
that the Committee's comments would be considered during that review.
When amendments to the same effect were put forward again in revised
form, in the Prime Minister and Cabinet (Miscellaneous Provisions) Bill
1995, the Committee again raised its concerns with the Minister. In a
letter dated 22 September 1995, the Minister informed the Committee
of the results of the review and of his opinion of the proposed amendments:
As you are aware, I am concerned about achieving a proper balance between,
on the one hand, the increased levels of accountability on the part
of Aboriginal organisations, and the need to protect personal rights
and liberties on the other.
I note your concern that the proposed new section 79AA (now 79B) would
remove the derivative use immunity presently contained in sections 39,
60 and 68 of the Aboriginal Councils and Associations Act 1976.
As those sections presently stand, anything obtained as a direct or
indirect consequence of the answer or the production of a document is
not admissible against the person examined or investigated in any proceeding
other than proceedings for an offence against subsections 60(4) or 69(2).
Your concern is that the proposed new sections do not contain a limit
on the indirect use to which any information can be put. [23]
After referring to advice from the Attorney-General's Department which
confirmed the effect of the proposed change, the Minister continued:
This problem was acknowledged and rectified during the course of the
1992 amendments of the Australian Securities Commission Act 1989,
when the derivative use immunity was removed from that Act. The new
section 79B as proposed in Item 1J of the Prime Minister and Cabinet
(Miscellaneous Provisions) Bill 1995 would reflect and be consistent
with the present section 68 of the Australian Securities Commission
Act 1989. Both these sections require privilege to be claimed before
answering a question or producing a document.
As you are aware, the Registrar of Aboriginal Corporations performs
functions in relation to Aboriginal Corporations which are similar to
those carried out by the Australian Securities Commission in relation
to Corporations under the Corporations Law. In particular, the Registrar
has powers of investigation and information gathering as well as examination
of persons and inspection of bodies which are parallel to those exercised
by the Australian Securities Commission. It therefore seems appropriate
that the model provided by the Australian Securities Commission legislation
be utilised in this amendment.
In its Fifteenth Report of 1995, [25]
the Committee thanked the Minister for this advice. The Committee was
not persuaded by the Minister's reference to the Australian
Securities Commission Act 1989. The Committee had raised concerns
when that Act was amended by the Corporations Legislation (Evidence)
Amendment Act 1992 to achieve the same effect as the proposed amendments
to the Aboriginal Councils and Associations Act 1976, that is,
to remove derivative use immunity.
When considering the Corporations Legislation (Evidence) Amendment Bill
1992 [26] the Committee took into account the
difficulties the Australian Securities Commission was having in obtaining
evidence to support the prosecutions of those who may have committed offences
against the law dealing with companies. However, it declared that the
right people had not to incriminate themselves was fundamental and should
not be prejudiced unless the reason for doing so was compelling.
In its Fifteenth Report of 1995, [27]
the Committee acknowledged that Parliament has the legislative power to
take away the common law right against self-incrimination and, if it thinks
fit, to substitute such immunity from prosecution as it considers
appropriate. The issue for the members of the Committee was whether the
course Parliament proposed to take would bring its legislation within
the criteria they had to apply. The Committee had to decide whether the
need to give proper protection to a person's rights meant that material
he or she was compelled to surrender should be immune from use against
him or her in criminal proceedings either directly or indirectly or both.
The Committee commented that the Minister was rightly concerned about
achieving a proper balance between the need for relevant people and organisations
to be held to increased levels of accountability and the need for
the protection of personal rights and liberties. Whether the proper
balance includes giving to a person immunity from the indirect or derivative
use of material which he or she is obliged to provide is a matter on which
opinions vary.
The Committee continued:
In 1992, some months after the enactment of the amendments to the Australian
Securities Commission Act 1989 which took away the immunity with
respect to the derivative or indirect use for that Act, and on
which the Minister now relies, the Minister introduced amendments to
the Aboriginal Councils and Associations Act 1976 to include
the derivative or indirect use which was not in the Act as passed
1976 - some years before the Scrutiny of Bills Committee was formed.
The Committee notes that Mr Tickner, the [then] Minister for
Aboriginal and Torres Strait Islander Affairs, wrote to the Committee
on 14 December 1992 on this very point:
I note the Committee's comments on clauses 5, 16 and 21 and the Committee's
further comments that these clauses are in a form which the Committee
has previously been prepared to accept.
In my view these clauses achieve an appropriate balance between,
on the one hand, increased levels of accountability on the part of
Aboriginal organisations and the need to protect personal rights and
liberties on the other. [28]
The Committee left the matter for ultimate resolution by the members
of the Senate. In the event, the Government withdrew the proposed amendments.
(ii) Prawn Export Promotion Bill 1994
The Committee dealt with this bill in its Third Report of 1995.
[29]
By clause 21 of the bill an authorised official could require a person
to furnish information in relation to matters relevant to the operation
of the Act. To this end, subclause 22(2) took away the common law right
people have to refuse to answer questions when doing so might incriminate
them.
The Committee acknowledged that it was a legitimate use of power for
the Executive to gather information for the purpose of administering the
legislation. But the clause that facilitated this at the same time empowered
the relevant authority to investigate whether a person had committed a
crime by avoiding the levy or part of it through submitting a false or
misleading return. The Committee was of the opinion that a person should
retain the right to remain silent on the grounds that he or she might
incriminate himself or herself where an investigation of that person's
conduct, which could result in prosecution, is being carried out.
The Committee sought the Minister's advice on whether clauses could be
drafted so as to distinguish the power to seek returns or information
for the ordinary purposes of collecting the levy from the power to seek
information for the purposes of investigating breaches.
The Minister responded in a letter dated 21 February 1995 as follows:
In view of the Committee's concern about sub-clause 22(2), the question
has been raised as to whether clauses could be drafted distinguishing
between the power to seek returns or information from a potential levy
payer for the ordinary purposes of collecting levy from the power to
seek information from the same person for the purpose of investigating
breaches. I am advised that the distinction the Committee seeks would
be very difficult, if not impossible, to draw in legislation. Furthermore,
to hedge the power under clause 21 with qualifications would merely
make it more difficult to use the power even for the "ordinary
purposes of collecting levy". If, whenever a request for information
were made, the requesting authority could be required to justify its
action as being within the stated criteria, the provision would, in
practical terms, be of little use. [30]
Given this advice the Committee was happy with the introduction on 29
June 1995 of the Transport Legislation Amendment Bill (No. 3) 1995 which
contained a use/derivative use immunity clause drafted in the way that
the Committee had recommended. The Committee dealt with this bill in Alert
Digest No. 11 of 1995.
Proposed subsections 19CC(6) to (10) to be inserted in the Air Navigation
Act 1920 by the Transport Legislation Amendment Bill (No. 3) 1995
provided:
(6) It is not a reasonable excuse for a person's refusal or failure
to:
(a) answer a question; or
(b) produce a document; or
(c) produce a part or component of an aircraft or other thing;
that the giving of an answer, or the production of the document, part,
component or thing, as the case may be, may tend to incriminate the
person or make the person liable to a penalty.
(7) If a person objects to:
(a) answering a question put to the person by the Director; or
(b) producing a document to the Director; or
(c) producing a part or component of an aircraft or other thing to
the Director;
on the ground that the answer to the question, or the production of
the document, part or component or thing, as the case may be, may tend
to incriminate the person or make the person liable to a penalty, subsections
(8) to (10) have effect.
(8) The person is not relieved of the obligation to answer the question
or produce the document, part, component or thing, as the case may be.
(9) The answer to the question, the production of the document, part,
component or thing, or any information or thing obtained as a direct
or indirect consequence of the answer to the question or the production
of the document, part, component or thing is not admissible in evidence
against the person in a criminal proceeding or in a proceeding for the
recovery of a penalty.
(10) Subsection (9) does not render an answer inadmissible in evidence
in proceedings in respect of the falsity of the statement.
The Committee observed that these provisions, if enacted, would abrogate
the privilege against self-incrimination of a person required to answer
a question, produce a document or a specified part or component of an
aircraft under proposed subsection 19CC(1).
They were, however, in a form which the Committee has previously been
prepared to accept because they limited the use to which the information
could be put. The Committee observed that the indirect, as well
as the direct use of such information, was to be precluded. This would
be, therefore, a 'use/derivative use' indemnity.
Further, the Committee endorsed the form in which the exception to the
indemnity in proposed subsection (10) was expressed. The Committee had
been concerned with other bills which, having abrogated the privilege,
granted the 'use/derivative use' indemnity but with exceptions to that
indemnity which were too broad. Upon seeking the relevant Minister's advice
on whether these exceptions could be narrowed, the Committee had been
told that the limitation the Committee sought was too difficult to draft.
Yet subsection (10) expressed precisely the exact limitation which the
Committee had been seeking. It allows the answer to a question to be admitted
in evidence when a person is prosecuted for giving a false answer to that
question. The answer, however, cannot be used as evidence to prove that
the person who gave it has committed some other crime.
(d) Reversal of the Onus of Proof
At common law, it is ordinarily incumbent on the prosecution to prove
the elements of an offence beyond reasonable doubt and the accused is
not required to prove anything. Provisions in some legislation reverse
this onus and require the person charged with an offence to prove or disprove
some matter to establish his or her innocence. Usually the Committee will
comment adversely on a bill which places the onus on the person prosecuted
to make out his or her defence.
The general practice of the Committee over the years has been to adopt
the approach of the Senate Standing Committee on Constitutional and Legal
Affairs (as it then was), as expressed in its report entitled The burden
of proof in criminal proceedings. In that report, the Constitutional
and Legal Affairs Committee said:
The [Constitutional and Legal Affairs] Committee is of the opinion
that no policy considerations have been advanced which warrant an erosion
of what must surely be one of the most fundamental rights of a citizen:
the right not to be convicted of a crime until he [or she] has been
proved guilty beyond reasonable doubt. While society has the role by
means of its laws to protect itself, its institutions and the individual,
the Committee is not convinced that placing a persuasive burden of proof
on defendants plays an essential or irreplaceable part in that role.
[31]
Toward the end of the 36th Parliament, the Committee became concerned
about an apparent increasing tendency in Commonwealth legislation to reverse
the onus of proof. In its Nineteenth Report of 1992, it discussed
certain provisions of the Tobacco Advertising Prohibition Bill 1992 which
involved a reversal of the onus of proof. The Committee stated that it
was concerned that:
...there is an increasing tendency to reverse the onus in relation
to such provisions. While the justification given, in most cases, appears
reasonable, the Committee notes that the same justification is equally
applicable in relation to murder and other serious offences. The expanding
use of the reversal of onus in legislation is, therefore, a matter of
great concern to the Committee. [32]
During the 37th Parliament the Committee commented on 17 clauses which
reversed the onus of proof. One example of a reversal which seemed to
be unintentional arose from the manner in which the relevant clauses had
been drafted. This was in the Weapons of Mass Destruction (Prevention
of Proliferation) Bill 1994. [33] When the
issue was raised by the Committee, the Minister agreed to have the clauses
redrafted and the bill became law but without reversing the onus of proof.
(e) Strict Liability Offences
The Committee will draw the Senate's attention to a bill which creates
a strict liability offence.
A bill creates such an offence when it provides that people are to be
punished for doing something or alternatively for failing to do something
whether they have a guilty intent to do so or not. They are held to be
legally liable for their conduct no matter what their moral responsibility
might be.
An example of such a provision was dealt with by the Committee in its
Alert Digest No. 6 of 1994 and in its Ninth Report of 1994.
The provision was contained in a bill seeking to amend the Student
Assistance Act 1973. It proposed criminal and civil sanctions for
matters to do with the payments of student assistance.
The bill provided for punishments of up to one year's imprisonment for
the commission of a strict liability offence. The Committee told the Minister
it was concerned about this.
The Minister responded as follows:
The committee expressed concerns about items 50 and 53 of the Schedule
to the Bill. The Government's concern in proposing these items was to
facilitate its program of eliminating overpayments under the student
assistance schemes.
As Senator Schacht noted in the Senate debate on the Bill, these amendments
were directed at overpayments amounting to about $43m a year. Senator
Schacht indicated that there is a need to balance protections for individuals
with effective efforts to ensure that taxpayer's money is properly spent
and is recouped if paid out incorrectly.
The Government recognised that the proposed amendments involved strict
liability offences but initially considered them warranted in view of
the wider considerations. As you will be aware, however, the Government
agreed to an amendment seeking to delete these two matters from the
Bill in view of the detailed concerns raised by the Committee. [34]
Mere negligence and strict liability
A matter to do with strict liability which the Committee had been concerned
with for some years was satisfactorily resolved during the course of the
37th Parliament.
The issue was whether a person ought be made criminally liable for simply
being negligent. A number of provisions in the past had attracted the
Committee's attention because they made people's conduct a crime even
though they had no mens rea or unlawful intent at the relevant time.
The Committee had had frequent examples of legislation which attached
criminal liability, not only to conduct which was intentional or reckless,
but also which was simply negligent. The Committee finally received a
comprehensive explanation for this practice when it dealt with the Air
Services Bill 1995 in Alert Digest No. 6 of 1995 and the Tenth
and Thirteenth Reports of 1995. In the latter Report the Committee summarised
its previous concerns:
The committee has consistently drawn attention to offence provisions
in this form since subsection 85ZKA(3) and 85ZKB(3) were inserted in
the Crimes Act 1914 in 1989.
The issues were canvassed in the committee's Twelfth Report of 1989
in respect of the Law and Justice Legislation Amendment Bill 1989 and
Sixth Report of 1993 in respect of the Australian Wine and Brandy Corporation
Amendment Bill 1993.
The crux of the matter appears to the committee to be whether mere
negligence should attract criminal liability for a serious offence.
The committee noted the response of the Deputy Prime Minister to the
committee of 11 July 1989.
What may be of concern to your Committee is the test of "ought
reasonably to know". The legislative intention behind the provision
is to cover both actual knowledge and recklessness. In certain circumstances
"wilful blindness" may be construed as actual knowledge
(see the facts of He Kaw Teh), but it may be that not all circumstances
of wilful blindness will be taken as actual knowledge. It is theoretically
better to treat "wilful blindness" as a type of recklessness
rather than elevate it to actual knowledge. Thus the provisions have
been formulated to cover both actual knowledge and recklessness (ie
in other words where the defendant knew, or ought reasonably to have
known).
The committee did not have any difficulty with a legislative intent
to eliminate wilful blindness as a defence; but the committee was concerned
that the formula proposed, in attempting to include wilful blindness,
would cover not only actual knowledge and recklessness, which is the
apparent legislative intent, but also mere negligence.
For mere negligence, no liability would attach under the present law.
[35]
The Committee received the Acting Minister's response on 8 June 1995
which stated in part:
Clauses 69 and 70 will replace substantially similar offences contained
in sections 78 and 78A of the Civil Aviation Act 1988. The existing
provisions provide that a person is guilty of an offence when they have
"reasonable grounds to believe that a statutory lien was in effect",
and clearly attach criminal liability to negligent acts. The new provisions
were drafted with the express intention of removing mere negligence
from the scope of these offences. Advice from the Attorney-General's
Department suggested that the new provisions be modelled on subsections
852KA(3) and 852KB(3) of the Crimes Act 1914. [36]
The Acting Minister concluded:
I believe that subclauses 69(2) and 70(2) are consistent with current
Commonwealth criminal law policy, and require proof of more than mere
negligence on the part of the defendant in any prosecution. As a result,
the government does not propose any amendments to clauses 69 and 70
in their current form.
In the Tenth Report of 1995, the Committee thanked the Acting
Minister for this response, noting the Acting Minister's assurance that
'the new provisions were drafted with the express intention of removing
mere negligence from the scope of these offences' [38]
and, on advice from the Attorney-General's Department, were modelled on
subsections 852KA(3) and 852KB(3) of the Crimes Act 1914. The Committee
asked the Minister to confirm that the advice from the Attorney-General's
Department was that the new provisions would achieve the express intention
of removing 'mere negligence' as a basis for a criminal offence.
The Parliamentary Secretary to the Minister for Transport responded on
21 August 1995 attaching the advice of the Attorney-General's Department,
the relevant part of which reads:
Proposed sections 73 and 74
3. Proposed section 73 provides that it is an offence to remove an
aircraft from Australia without the consent of an authorised officer
if the person knows or has reasonable grounds to believe that a statutory
lien is in effect in respect of the aircraft. The provision provides
for a penalty of 2 years imprisonment.
4. Proposed section 74 prohibits a person from detaching any part or
equipment from the aircraft without the consent of an authorised officer
if the person knows or has reasonable grounds to believe that a statutory
lien is in effect in respect of the aircraft. The provision provides
for a penalty of 2 years imprisonment.
5. Both these proposed provisions include the phrase "ought reasonably
to have known". Such a provision will undoubtedly cause concern
to the Senate Standing Committee for the Scrutiny of Bills as it has
expressed concern about that formulation on previous occasions. Modified
alternatives of such a provision are subsections 85ZKA(3) and 85ZKB(3)
of the Crimes Act 1914. The test, then, is not whether a reasonable
person in similar circumstances should have known, rather the defendant,
having regard to his or her abilities, experiences, qualifications and
other attributes and all the relevant circumstances should have known.
6. While the test may be objective in part (ought reasonably to have
known) it is subjectively based (whether the person, having regard to
his or her individual traits, etc. should have known). Thus the formulation
is directed at creating an offence, the mens rea of which covers both
actual knowledge and recklessness and takes into account the characteristics
of the defendant and all the surrounding circumstances. [39]
The Committee thanked the Parliamentary Secretary for this advice which
finally addressed the Committee's concerns and resolved the matter satisfactorily.
(f) Powers of Search and Seizure Without Warrant
The Committee has consistently drawn attention to provisions which allow
search and seizure without the issue of a warrant. Such provisions will
be acceptable only where the circumstances and the gravity of the matter
in question justify such a power being given. An example of such a provision
is contained in the Transport Legislation Amendment Bill (No. 3) 1995,
which the Committee dealt with in its Alert Digest No. 11 of 1995.
Proposed section 19FE of that bill permitted an investigator of an air
accident to enter accident site premises without the permission of the
occupier and without a warrant.
Generally the Committee would hold that a power to enter premises without
consent and without a warrant trespasses unduly on personal rights and
liberties. In considering whether such a power in the circumstances of
the proposed clause would do so, the Committee noted the purpose for which
this power was to be granted and the circumstances in which it was to
be exercised: basically the purpose was to give effect to the ICAO requirement
set out in paragraph 5.6 of Annex 13 to the Chicago Convention that:
The investigator-in-charge shall have unhampered access to the wreckage
and unrestricted control over it to ensure that a detailed examination
can be made without delay by authorised personnel participating in the
investigation.
The Committee highlighted the contrast between proposed section 19FE
and the general power to enter premises with a warrant under proposed
section 19CE. The latter section would require a magistrate to be satisfied
by information on oath or affirmation that there were reasonable grounds
to suspect that the premises would contain evidential material relating
to an investigation. It seemed to the Committee that it would be a mere
formality for an investigator, in the absence of the power to enter without
a warrant under proposed section 19FE, to satisfy a magistrate, under
proposed section 19CE that wreckage at an accident site was evidential
material in relation to his investigation. Accordingly, the Committee
made no further comment about this provision.
Warrants issued by unqualified or non-judicial officers
The Committee does not approve of provisions which give the power to
issue warrants to legally unqualified or non-judicial officers, such as
justices of the peace. In fact, no such clause attracted the attention
of the Committee during the 37th Parliament.
It is often the case that giving the power to issue warrants to legally
unqualified or non-judicial officers is justified on the grounds of the
remoteness of the locations at which the warrants are required and the
consequent unavailability of magistrates. For example, in his answer to
the Committee's comments on the Cattle and Beef Levy Collection Bill 1990,
the Minister for Primary Industries and Energy stated:
If it is decided that a search warrant is necessary the field officer
must apply to a magistrate where one is available. Due to the remoteness
of many locations, however, in some cases only a Justice of the Peace
may be available. It is emphasised that Departmental Investigation Officers
conduct routine auditing, advise and assist levy payers, and only rarely
exercise their power to use search warrants in the conduct of investigations:
search warrants have been sought on only three occasions during the
last three years. [40]
The Minister assured the Committee that:
officers administering the Cattle and Beef Levy Collection arrangements
will only approach a Justice of the Peace for the issue of a warrant
where it is not possible to obtain a warrant from a magistrate. [41]
The Committee thanked the Minister for this assurance.
The Committee considers that if the power to issue warrants is to be
given to justices of the peace for any reason, whether it be the remoteness
of the relevant premises or the unavailability of magistrates or whatever,
this should be clearly set out in the explanatory memorandum.
(g) Taking Away Professional Privilege
The Committee does not favour legislation which takes away the right
of a person to have his or her communications with a legal adviser kept
confidential. This issue arose when the Committee examined the Health
and Other Services (Compensation) Bill 1994.
In Alert Digest No. 18 of 1994, the Committee pointed out that
proposed new paragraph 38(3)(a) of this bill, if enacted, would preclude
a person from relying on a claim of legal professional privilege as a
basis for not complying with a notice under section 36 to provide information
or produce a document.
Paragraph 38(3)(a) provides :
(3) For the purposes of subsection (1), a person is not taken
to have reasonable excuse for refusing or failing to comply with a notice
under section 36 only because:
(a) the information or document is, or could be, subject to a claim
of privilege that would prevent the information being given in evidence,
or the document being produced as evidence, in proceedings before
a court of tribunal;
The Committee set out the reasons for this provision given on page 28
of the explanatory memorandum which stated:
Subclause 38(3) provides that the fact that the information or document
which is sought is or could be subject to legal professional privilege
does not, of itself, constitute a reasonable excuse for failing to comply
with a notice issued under clause 36. Similarly, a contractual obligation
not to relay the information or document to any third party is not a
"reasonable excuse" for failing to comply with a requirement
to provide information under clause 36. These provisions are an important
feature of this Bill because they will improve the transparency of settlements
and judgements in compensation cases.
The Committee questioned whether the advantages to be gained from this
provision outweighed the harm brought about by the trespass on the right
to maintain confidentiality in client-solicitor relationships.
On 25 January 1995, the Minister responded as follows:
In relation to the abrogation of legal professional privilege, one
problem with administering the existing provisions contained in the
Health Insurance Act 1973 and the National Health Act 1953
which are aimed at preventing double dipping by compensable people has
been the difficulty in accessing information about the terms of compensation
awards. The existing provisions can be and are circumvented because
of recourse to the protection afforded by legal privilege.
The provisions of the Health and Other Services (Compensation) Bill
1994 have been framed to address this existing problem. [42]
In the Committee's Second Report of 1995, [43]
the Committee thanked the Minister for this explanation but suggested
that further consideration of the issue would be profitable.
The Committee observed that the explanatory memorandum said that the
bill was designed to address the problem of double dipping in health and
community services programs by compensable people.
The Committee, however, was concerned that the legislation proposed to
address that mischief did not take sufficient account of the complexities
of common law damages awards, of the adequacy of those statutory schemes
that in some jurisdictions had replaced common law damages and, ultimately,
of the ongoing philosophical debate on how the cost of injury was best
borne by the community. A further complicating factor was the perception
by the Commonwealth and each State government that the other keeps attempting
to avoid its responsibilities in the area.
The Committee acknowledged the reasoning behind the proposal to abrogate
legal professional privilege, but continued to question whether what was
to be gained by its enactment was worth the loss of that privilege. There
is often a tension between the perceived need for a particular solution
to a problem and the need to preserve personal rights and liberties which
the Committee's experience has shown can be readily prejudiced.
The Committee suggested that there were a number of reasons for preserving
the privilege.
First, the rationale that the Commonwealth must always be paid back in
full is open to questioning. Indeed, the bill itself demonstrates that
it is not always appropriate to recover in full. For example, clause 27,
subclauses 8(2) and (3) provide that the amount recoverable may be reduced
to less than the amount paid by way of medicare benefits.
Secondly, the information obtained by abrogating legal professional privilege
may give rise to further problems in deciding under section 18(1) of the
Health Insurance Act 1973 what conclusions to draw from the documents
obtained as a result of the abrogation.
Thirdly, there is already an alternative mechanism in the bill for obtaining
some of the required information and the Committee suggested that a similar
mechanism could be instituted to obtain other information without the
need to abrogate professional privilege.
In a letter dated 8 May 1995, the Minister responded to this issue as
follows:
The Community Affairs Legislative Committee asked that my Department
undertake consultations on the Bills and report back to the Senate on
these consultations. I forwarded a copy of my Department's Report to
the Committee on 27 March 1995. I enclose a copy for your information.
The Report proposes a number of amendments which I am currently considering.
Two of these have a significant impact on the main concern of your last
report - the potential infringement of the common law principle of legal
professional privilege by clause 38(3)(a).
It is proposed that a certificate of details signed by both parties
be used to satisfy the details required for the operation of the legislation.
Firstly, if such an amendment were introduced, it would replace the
earlier provisions that required a copy of the settlement document to
be lodged with the Health Insurance Commission (HIC). Secondly, it would
replace the original proposal to allow an investigation of any claims
of contributory negligence by the HIC.
If such an amendment is accepted therefore, the certificate of details
would remove the need to impinge on legal professional privilege. While
this alternative does open up the possibility of collusion by parties
to avoid or minimise repayment to the Commonwealth, the HIC would monitor
this. If there are problems of these kinds, either with particular insurers
or legal representatives, or more broadly with this area of the legislation,
other options would need to be considered.
The existence of clause 38(3)(b) overcomes the problem of parties seeking
to contractually avoid providing this information eg by relying on a
non-disclosure clause in a settlement. However, we are also seeking
to ensure that, in the case of a non-disclosure provision which becomes
an order of a Court, that disclosure of these details for the purposes
of this legislation is not an offence.
Similarly, under some State legislation, revealing even the factual
details proposed by this possible amendment could be an offence. Statutory
privilege covers such details in some cases eg the legislation covering
the Victorian Health Services Commission prohibits revealing such details
from cases "conciliated" by the Commission. Such conciliations
can involve significant monetary settlements in cases of personal injury.
The Victorian Health Services Commissioner has indicated that she does
not see a problem with the revelation of these details for the purposes
of our legislation. We will therefore be exploring the best way of achieving
this end through amendment of the legislation. [44]
The Committee thanked the Minister for this response, noting the
proposals which would preclude the need to prejudice legal professional
privilege.
(h) Oppressive Powers over Vulnerable People
The Committee will comment unfavourably on legislation which makes vulnerable
people subject to oppressive bureaucratic powers. This issue arose when
the Committee dealt with the Social Security (Non-Budget Measures) Legislation
Amendment Bill 1994.
In Alert Digest No. 1 of 1995, the Committee pointed out that
Division 7 of Part 2 of this bill, if enacted, would equip the Department
of Social Security with an additional power to compel claimants for sole
parent pension or bereavement allowance to attend an interview and give
it information about the claim. The bill went on to create a new basis
for rejecting a claim, namely the failure of the person making it to attend
the interview. At first blush these requirements seemed reasonable; but
the Committee was concerned about the bill on several counts.
By way of background the Committee made some observations.
- The Department already has the power under the Social Security
Act 1991 to compel attendance at an interview - subsection 1304(5).
Subsection 1304(6) provides that the time specified for a compulsory
interview must be at least 14 days after the notice is given.
- The explanatory memorandum stated that the 14 day notice period is
considered impractical for new claims because such persons are generally
in hardship and need to have their claims determined as quickly as possible.
Section 1304 is considered to prevent the department from arranging
an interview in less than fourteen days.
- The explanatory memorandum also stated that section 1304 prevents
the Department from rejecting a claim within that 14 day period.
- The explanatory memorandum also stated that in order to ensure that
claims do not remain undetermined for 'lengthy periods of time simply
because the claimants have failed to attend an interview' the amendments
allow the Department to reject a claim if the person has failed to attend
an interview within the notice period.
It seemed to the Committee that the proposed amendments raised several
questions:
- Why was there a problem only with sole parents and widowed persons
and not with other claimants for income support?
- Surely if claimants are in hardship, they would be willing to attend
an interview. Was there a legal impediment to such an interview?
- Why should officials be given an extra power to reject a claim on
a ground that has nothing to do with whether or not the claimant is
otherwise qualified but solely for disobeying a departmental instruction
to come and be interviewed?
- Why should a claimant who has perhaps been traumatised by bereavement
and therefore forgets or is unable to face an interview be forced to
justify themselves to a bureaucrat under pain of losing their first
or perhaps first and second instalment of the pension?
The Committee considered that, if claimants for special benefit, who
are in hardship, can be satisfactorily dealt with on a co-operative basis
without being compelled by special powers to attend an interview, a change
in approach to sole parent and widowed claimants may well bring more benefit
than changes to the Act. The Committee was interested to know whether
the Minister agreed and sought his advice about these matters.
On 21 March 1995, the Minister responded as follows:
Division 7 was reviewed in the light of the unfavourable reaction that
it attracted and it was decided that it should be omitted from the bill.
A Government amendment to this was moved and passed in the House of
Representatives. As a result, I do not believe it is necessary to address
the substance of the Committee's concerns about Division 7. [45]
The Committee thanked the Minister for this response. It noted the withdrawal
of Division 7.
(i) The People's Right to Obtain Information from the Executive
through Parliament
This issue arose when the Committee dealt with the Auditor-General Bill
1994.
This bill occasioned the first hearing held by the Committee. It arose
in an interesting way. On first reading the bill, the Committee considered
that clause 34, which was to become the focus of debate, was not one which
ought attract the Senate's attention. However, the Government interpreted
it differently saying clause 34 would operate as a declaration under section
49 of the Constitution to limit the powers of Parliament. Were this correct
then the bill, if passed, would prevent the Parliament obtaining information
from the Auditor-General except through his or her formal reports to Parliament.
This would be of concern to the Committee.
Given the Government's view of the legislation the Committee sought the
Minister's advice as to whether clause 34 could be redrafted so as to
make clear that, subject to appropriate safeguards, Parliament and its
Committees had a right to information from the Auditor-General. In the
Committee's view, Parliament needed appropriate access to such information
to enable it to carry out its constitutional function of scrutinising
the operations of the Executive. This was clearly in the interests of
the community.
The Committee's considerations
The Committee dealt with this bill in Alert Digest No. 4 of 1995.
It made a number of comments. In a letter received by the Committee on
the 30th March 1995 the Minister for Finance responded to these comments.
He referred to advice he had obtained from the Attorney General's Department,
whose opinion was that clause 34 operated as a declaration under section
49 of the Constitution and thereby restricted Parliament's power to obtain
information from the Executive.
In its Seventh Report of 1995, the Committee discussed the response
of the Minister for Finance. In that Report, the Committee said that it
would seek a meeting with the Attorney-General to discuss clause 34 of
the bill and to tell him that it might impinge on the power of Parliament
to obtain information.
The Attorney-General considered it more appropriate to provide, with
the consent of the Minister for Finance, a copy of the relevant legal
opinion of his Department, and to make available a senior officer of the
Department to discuss the matter with the Committee .
The legal adviser to the Committee, Professor J L R Davis, put in writing
the reasons for his view that clause 34 of the bill did not operate as
a declaration within the meaning of section 49 of the Constitution.
The Committee held a hearing on 7 June, 1995. Evidence was given by Mr
Robert Orr, Deputy General Counsel, Office of General Counsel of the Attorney-General's
Department, Professor J L R Davis, Legal Adviser to the Committee and
Mr Harry Evans, Clerk of the Senate.
After the public hearing, the Committee sought the advice of the Minister
of Finance and of the Attorney-General on those key issues which required
further clarification.
Key issues
In its Tenth Report of 1995 [46] the
Committee observed that significant issues had been raised during the
Committee's consideration of the bill. These issues were:
- whether clause 34, if enacted, would diminish the power of Parliament
or its Committees or both to obtain information
- whether section 48F of the present Audit Act has the same effect
- whether either section 48F or clause 34 had been drafted with that
intention or whether that effect was unintended
- if it was unintended, should the clause be re-drafted to avoid that
effect
- if it was intended, should the clause be enacted in that form or in
a more express form so that Parliament would know precisely the effect
of the legislation with which it was dealing.
The Committee considered that clause 34 did not operate as a declaration
for the purposes of section 49 of the Constitution. Accordingly, it did
not prevent Parliament or its Committees from obtaining information from
the Auditor-General other than from his formal reports to Parliament under
clauses 13, 14, 15, 16 and 22 of the bill.
The Minister for Finance and the advice he received from the Attorney-General's
Department held that clause 34 did so operate.
In summary, the Committee took the following stance to the issue:
Clause 34 made no change to Parliament's rights and powers under Section
49 of the Constitution. If the Committee's opinion was correct, the
Committee had no further concern with the bill.
If the Minister for Finance and Attorney-General's Department were
correct in saying that it did limit Parliament's powers in the way described,
the Committee considered that it should not do so and should be redrafted.
Were the Minister correct and were clause 34 to remain then the Committee
contended that the bill ought expressly detail the reduction of Parliament's
power which would follow as a consequence.
In its Tenth Report of 1995 the Committee detailed the material
it had received and developed its own analysis of the meaning of clause
34:
The Committee was not persuaded that clause 34 operated as a declaration
under section 49. The Attorney-General's opinion said it probably did;
the evidence from Mr Orr appeared to concede that it was a matter of opinion.
The Committee, therefore, reported to the Senate that clause 34 may impinge
on the powers of Parliament.
Should the powers of Parliament be diminished in this way?
When the present section 48F was inserted in the Audit Act 1901
debate in Parliament did not touch on the issue of whether section 49
of the Constitution was involved. Accordingly, the Committee sought the
advice of the Minister for Finance on whether in making clause 34 a redraft
of section 48F there was an intention to bring section 49 of the Constitution
into operation.
The Minister responded in a letter of 16 June 1995 that the intention
was only to continue the scope and effect of section 48F. As he put it:
In my previous letter of 22 March 1995 to you in respect of Clause
34, I pointed out that the terms of the proposed provision were included
in the Auditor-General Bill as a continuation of the scope and effect
of an existing provision of the Audit Act 1901 - subsection 48F(5)
- and that, as far as I was aware, the existing provision had operated
appropriately and unremarkably in the handling of specific categories
of sensitive information that the Auditor-General had access to.
Thus, the intention in drafting the clause was to continue that
position. [47]
The issue remained, then, whether clause 34 in bringing section 49 of
the Constitution into operation was producing an unintended effect and,
if so, whether it should be redrafted either to make the intention explicit
or to take away the unintended consequence? The Committee itself preferred
the latter course.
The Committee concluded that, whether the consequence was intended or
unintended, it was for the Senate to decide whether to pass the clause
in the form presented to it.
Should the intent be made explicit?
The Committee discussed whether or not, as a matter of policy, Parliament
should be warned that any particular bill contains a clause which will
reduce its rights and powers provided for under section 49 of the Constitution.
The Committee discussed the matter of whether the proposer of a bill should,
as a matter of constitutional propriety, draw Parliament's attention to
its containing a declaration that section 49 will operate. It considered
that this might be achieved by the relevant clause expressly adverting
to section 49 of the Constitution or for the Acts Interpretation Act
1901 or the Parliamentary Privileges Act 1987 to be amended
so that no section of any statute could be interpreted as a section 49
declaration unless it expressly provides to that effect.
The Committee sought the advice of the Attorney-General on this issue.
The Attorney-General replied on 7 July 1995, the relevant parts of his
response being:
Parliament may include in an Act a provision which states expressly
Parliament's intention that the provision operate as a declaration of
Parliament's powers, privileges and immunities for the purposes of s.49
of the Constitution. Whether that is an appropriate course to follow
will depend on the proposed legislative provisions in question. In relation
to cl.34 of the Auditor-General Bill 1994, an express legislative statement
to that effect would remove any doubt which may presently exist about
the way in which cl.34 is intended to operate, once enacted.
I do not think it would be appropriate for either the Acts Interpretation
Act or the Parliamentary Privileges Act to be amended to provide that
a provision of an Act may only be interpreted as a s.49 declaration
if it expressly provides that it is such a declaration.
First, I consider that there is some risk such an amendment may be
beyond the Parliament's legislative competence. That is because such
an amendment might be characterised as an attempt to alter the effect
of the Constitution. If the effect of s.49 is that the Parliament can
declare its powers, privileges and immunities either expressly or by
necessary implication, a legislative provision which said that Parliament
could only declare those powers, privileges and immunities expressly
could be characterised as an attempt to alter s.49. An ordinary Act
of Parliament cannot validly have that effect. The Constitution may
only be altered in accordance with the process established by s.128
of the Constitution.
Secondly, if such a provision could validly be enacted, it would be
incapable of having the effect desired by the Committee. It is a well
established principle of statutory interpretation that a provision of
an Act which is expressed to operate in the absence of express provision
to the contrary does not protect the provision from implied repeal by
later inconsistent legislation. Accordingly, it would be possible for
a provision such as cl.34 of the Auditor-General Bill, if enacted later
in time, to effect an implied repeal of a provision such as that proposed
by the Committee. [48]
General conclusions
The Committee explored whether clause 34 operated as a declaration under
section 49. If it did not, the Committee would have had no further
concern with the bill. As the matter was not without doubt, the attention
of Senators was drawn to the provision.
The Committee sought to clarify whether the bill's proposer intended
section 49 to apply. It seemed that this issue was not specifically adverted
to. That such an effect on the powers, privileges and immunities of Parliament
could be brought about in the way it was became a matter of concern to
the Committee and this was drawn to the attention of Senators.
The bill was not considered again by the Senate before the end of the
Parliament. It has been brought back for consideration by the 38th Parliament.
Footnotes
[1] Hobbes, T, Leviathan (1914, JM Dent
and Sons Ltd, London). These passages from Hobbes were referred to by
Toohey J in Polyukhovich v The Commonwealth (1991) 172 CLR 501,
at p. 687.
[2] Blackstone, W, Commentaries on the laws
of England (Book 1) (1765, Clarendon Press, Oxford), pp. 45-46. These
passages from Blackstone were referred to in Polyukhovich v The Commonwealth
(1991) 172 CLR 501 by Mason CJ (at p. 534), Deane (at p. 611), Dawson
(at p. 642) and McHugh JJ (at p. 718).
[3] See, for example, Alert Digest No. 7
of 1995 (Medicare Levy Amendment Bill 1995).
[4] See, for example, Alert Digest No. 6
of 1995 (Human Services and Health Legislation Amendment Bill (No.
1) 1995).
[5] See, for example, Alert Digest No. 9
of 1993 (Industrial Relations and Other Legislation Amendment Bill
1993).
[6] See, for example, Alert Digest No. 18
of 1994 (Customs Tariff Amendment Bill (No. 2) 1994). An excise (or
customs) tariff or an excise (or customs) tariff alteration may be proposed
in the Parliament. When Parliament is not sitting, Section 160B of the
Excise Act 1901 provides for the notification of an intention to
table in the Parliament an excise tariff or an excise tariff alteration.
There is a similar provision in the Customs Act 1901. But an increase
in duty may not have effect prior to the date of the proposal in Parliament
or the date of the notification as the case may be.
[7] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995, (Parliamentary Paper
493/1995), pp. 226-227.
[8] ibid, p. 227.
[9] ibid, p. 230.
[10] Ridgeway v R (1995) 184 CLR 19.
The High Court held that evidence should generally not be admitted where
law enforcement officers break the law by committing an element of the
offence for which an accused person is being prosecuted. This decision
was based on the need to preserve the authority of Parliament and on public
policy grounds.
[11] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995, (Parliamentary Paper
No. 493/1995, p. 282.
[12] ibid., p. 282.
[13] Senate Standing Committee for the Scrutiny
of Bills, Annual Report 1986-87 (Parliamentary Paper No. 443/1987),
p. 12.
[14] ibid, pp.12-13.
[15] Journals of the Senate, 8 November
1988, pp. 1104-5.
[16] Senate Standing Committee for the Scrutiny
of Bills, Alert Digest No. 1 of 1995.
[17] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995, (Parliamentary Paper
No. 493/1995) pp. 74-77.
[18] Journals of the Senate, 8 November
1988, pp. 1104-5.
[19] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995, (Parliamentary
Paper No. 493/1995), pp. 94-95.
[20] ibid., p.31.
[21] Senate Standing Committee for the Scrutiny
of Bills, First to Eighteenth Reports of 1994, (Parliamentary Paper
No. 472/1994), pp. 282-285.
[22] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995, (Parliamentary Paper
No. 493/1995), pp. 326-329.
[23] ibid., p. 327.
[24] ibid., p. 328.
[25] ibid., pp. 326-329.
[26] Senate Standing Committee for the Scrutiny
of Bills, First to Twentieth Reports of 1992, (Parliamentary Paper
No. 546/1992), p. 60.
[27] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995,(Parliamentary Paper
No. 493/1995), p. 329.
[28] ibid., p. 329.
[29] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), pp. 29-32.
[30] ibid., p. 31.
[31] Parliamentary Paper No. 319/1982, p. 47.
[32] Senate Standing Committee for the Scrutiny
of Bills, First to Twentieth Reports of 1992 (Parliamentary Paper
No. 546/1992), p. 603.
[33] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), pp. 4-6.
[34] Senate Standing Committee for the Scrutiny
of Bills, First to Eighteenth Reports of 1994 (Parliamentary Paper
No. 472/1994), p. 131.
[35] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), pp. 274-278.
[36] ibid., p. 276.
[37] ibid., p. 276.
[38] ibid., p. 182.
[39] ibid., pp. 277-278.
[40] Senate Standing Committee for the Scrutiny
of Bills, First to Twelfth Reports of 1990 (Parliamentary Paper
No. 444/1990) p. 137.
[41] ibid., p. 137.
[42] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), p. 15.
[43] ibid., pp. 14-18.
[44] ibid., p. 159.
[45] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), p. 105.
[46] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), pp. 183-193. See also pp. 244-255 and 302-304.
[47] Senate Standing Committee for the Scrutiny
of Bills, First to Nineteenth Reports of 1995 (Parliamentary Paper
No. 493/1995), p. 192.
[48] ibid., p. 245.