CHAPTER 2

UNDUE TRESPASS ON PERSONAL RIGHTS AND LIBERTIES

Application of criterion set out in Standing Order 24(1)(a)(i)

2.1 Under Standing Order 24(1)(a)(i), the Committee is required to report on whether legislation trespasses unduly on personal rights and liberties. Legislation might trespass unduly on personal rights and liberties in a number of ways. For example, it might:

• have a retrospective and adverse effect on those to whom it applies;
• not only operate retrospectively, but its proposer, invariably the Government, might treat it as law before it is enacted – usually from the date the intention to legislate is made public; this is often referred to as legislation by press release;
• 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;
• reverse the common law onus of proof and require people to prove their innocence when criminal proceedings are taken against them;
• impose strict liability on people when making a particular act or omission an offence;
• give authorities the power of search and seizure without requiring them to obtain a judicial warrant prior to exercising that power;
• take away people's privilege to keep confidential professional communications with their legal advisers;
• equip officers with oppressive powers for use against a vulnerable class of people or deny those people natural justice; or
• take away Parliament's right to obtain information from the Executive.

2.2 Standing Order 24(1)(a)(i) may apply in other circumstances: for example, where legislation directly prejudices fundamental entitlements such as the right to vote. It may apply where legislation increases certain powers of the Executive which could infringe rights such as that to privacy: for example, by allowing the more extensive use of tax file numbers or of data-matching techniques. Explanations and specific examples of each of these situations are detailed below.

Retrospectivity

2.3 Legislation has retrospective effect when it makes a law applicable to an act or omission which took place before the legislation was enacted. Criticism of this practice is longstanding. For example, in 1651, Thomas Hobbes in Leviathan observed that “No law, made after a Fact done, can make it a Crime”, and “Harme inflicted for a Fact done before there was a Law that forbad it, is not Punishment, but an act of Hostility”. [1]

2.4 Similarly, in 1765, Sir William Blackstone, in his Commentaries, referred to the vice of making laws but not publicly notifying those subject to them. He then 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]

2.5 The Committee endorses the traditional view of retrospective legislation. Its approach is to draw attention to bills which seek to have an impact on a matter which has occurred prior to their enactment. It will comment adversely where such a bill has a detrimental effect on people. However, it will not comment adversely if:

• apart from the Commonwealth itself, the bill is for the benefit of those affected;
• the bill does no more than make a technical amendment or correct a drafting error; or
• the bill implements a tax or revenue measure in respect of which the relevant Minister has published a date from which the measure is to apply and that publication took place prior to that date.

2.6 In the Committee's view, where proposed legislation is to have retrospective effect, the Explanatory Memorandum should set out in detail the reasons retrospectivity is sought.

2.7 During the 38th Parliament retrospectivity persisted as one of the principal reasons for the Committee reporting on clauses in bills. Some examples of the Committee's approach to the issue are set out below.

Example: Excise Tariff Amendment Bill (No 1) 1997

2.8 Subclause 2(2) of this bill provided that certain amendments were to come into effect retrospectively. Their date of effect was to have been 3 February 1996. These amendments involved the repeal of the definition of `spirituous beverage' in the Schedule to the Excise Tariff Act 1921, and the insertion of a new item in that Schedule dealing with the excise to be paid on beverages containing distilled alcohol.

2.9 The amendments were proposed as a result of a decision by the Administrative Appeals Tribunal (AAT) concerning the beverage `Subzero Alcoholic Soda'. The Australian Customs Service (ACS) considered that `Subzero' was excisable under the Tariff Act as a spirituous beverage. However, the AAT determined that a beverage with a comparatively low alcohol content by volume (of 5.5%) could not be described as spirituous, and was therefore not excisable. This decision was based on the common concept of `spirit' in the community, namely a strong alcoholic liquor usually containing around 37% alcohol by volume. The ACS lodged an appeal against this decision.

2.10 The Committee was not troubled by amendments being made to the Tariff Act following the Tribunal's decision. However, it was concerned with two apparent misapprehensions in the Explanatory Memorandum: first, that the law had somehow been changed by the AAT's decision; and second, that money the Government had taken from excise payers, even though they were not required by law to pay it, should not be refunded by the Executive. In Alert Digest No 4 of 1997, the Committee stated that the AAT had not changed the law. Rather, the ACS had given a meaning to legislation which was incorrect.

2.11 In response, the Minister stated:

• “[T]he term `spirituous beverage' was introduced into the Excise Tariff Act 1921 (the Tariff Act) in 1985 with the intention of making any beverage which contained a spirit subject to excise. All such beverages have been treated as excisable regardless of their alcoholic content since that time.”
• “Your Committee expressed concern that the Explanatory Memorandum exhibits the misapprehension that the meaning of the law was somehow changed by the AAT decision in the `Subzero' case. I do not share the Committee's concern in this instance. Rather, I consider that the Explanatory Memorandum clearly indicates that the ACS is continuing to treat all beverages containing distilled alcohol as excisable regardless of their alcohol content, despite the AAT decision, clearly contradicts any perception that the law may have been changed by the AAT decision.”
• “I note your Committee's concern that retrospectively changing the law will override the rights of people to have the law apply to their actions as it stands at the time of those actions. Based on the fact that there was no dispute as the excisability of beverages containing distilled alcohol, however, it is not considered that the provisions in the Bill involve a substantial change to the law in relation to alcoholic beverages but only amount to a clarification of the law as is stood at the time of the `Subzero' decision.”
• “For this reason, I also do not agree with your Committee that the Explanatory Memorandum exhibits the view that moneys which excise payers were not by law required to pay should not be refunded by the Government. I believe that the Explanatory Memorandum clearly indicates that excise duty, as a matter of law, has always been, and continues to be, payable on all beverages based on distilled alcohol and that the provisions of the bill are only clarifying the application of this law to such beverages. There are, therefore, no grounds upon which excise duty paid on such beverages can be legally refunded.”

2.12 The Committee thanked the Minister for this response but remained unconvinced. In its Fifth Report of 1997, it wrote:

Where there is a dispute as to the meaning of the law, as there was in the present instance, the courts have the constitutional duty to say what the law means and to apply it. Neither a department nor any of its officials has the ability to give a binding interpretation of legislation, nor has any individual affected by its terms.

The Australian Customs Service has appealed to the Federal Court. Were the Federal Court to reverse the decision of the AAT this bill, if enacted, would become superfluous …

If the Federal Court were to confirm the AAT decision, it would mean (subject, of course, to a further appeal to the High Court) that the law has always been that excise is not payable in cases like the present one. This would mean that persons have paid excise under protest because of section 154 when they were never lawfully obliged to do so.

Therefore, the committee maintains its concerns about the retrospectivity of this bill. People are entitled to be dealt with for their actions and omissions in accordance with the law prevailing at the time of their occurrence and not with a legal regime instituted at a later date. [3]

2.13 Subsequently, the Federal Court rejected the appeal by Customs, and upheld the decision of the AAT.

2.14 On 27 August 1997, the Australian Democrats moved an amendment to address the issue of retrospectivity, seeking to apply the legislation from 3 February 1997. This amendment was ultimately negatived in the Senate.

Example: Taxation Laws Amendment Act (No 2) 1995

2.15 On 30 March 1995, this Bill was introduced into the House of Representatives, which passed it with amendments on 22 June 1995. It was introduced into the Senate on 29 June 1995. The Bill was passed by the Senate on 1 December 1995 and received Royal Assent on 16 December 1995.

2.16 Among other things, the Bill proposed to amend the Income Tax Assessment Act 1936 to clarify the taxation arrangements for superannuation pensions and roll-over annuities. The Act was amended so that the deductible amount of a life time superannuation pension or annuity was to be calculated on the basis of life expectancy at the beginning of the period in respect of which the pension or annuity was payable.

2.17 On 20 October 1995, the Committee received a letter from Mr Douglas Chang of Macquarie Investment Management. This letter addressed the issue of the definition of life expectation factor and its effect on certain taxpayers in receipt of allocated pensions.

2.18 Mr Chang drew attention to the quandary of those taxpayers who were required to submit a tax return by 31 October 1995. The law as it then stood would have required a different self-assessment from that which would be required once the law was changed. This change was to operate retrospectively. Mr Chang wrote:

[I]n preparing their tax returns these taxpayers have calculated their deductible amount based on current law and could rightfully assume that using a life expectancy calculated at the date of first payment was permissible, particularly as Taxation Office confirmation has been obtained by the pension provider. It is worth noting that this amendment unlike the proposed changes in Part 7 of the Bill, was not brought to the attention of taxpayers in the 1994/95 Tax Pack.

However once this Bill has been passed and received Royal Assent, these taxpayers will now be required to have the deductible amount re-calculated for their allocated pension. This will necessitate an amendment to their 1994/95 tax returns which have already been lodged in most cases, an additional payment of tax and possibly a penalty. We believe this retrospective result to be manifestly unfair and unnecessary notwithstanding the very small number of taxpayers that would be affected.

2.19 The Committee drew Mr Chang's observations to the attention of the Treasurer, together with his suggestion that the problem would not arise if the amendments concerned applied from 1 July 1995 rather than 30 March 1995.

2.20 The then Assistant Treasurer responded that the Government itself proposed to amend the legislation to address the issue of retrospectivity. Consistent with industry representations, the Government proposed to have this amendment apply where the period for which the annuity or pension first became payable was after 30 March 1995 rather than where the first payment was made after 30 March 1995:

This change has been recommended because of the large number of individuals who first purchased an allocated pension or allocated annuity in April to June 1994 and who elected to defer receipt of the first pension or annuity payment until after 30 March 1995. Without the amendment, these people, together with others who purchased an allocated pension before 30 March 1995, will be subject to higher levels of taxation on their pension or annuity than anticipated at the date of purchase.

The amendment proposed by Mr Douglas Chang … does not go this far. That is, his proposal does not protect taxpayers who entered into a contract before 1 April 1994 and did not receive their first pension or annuity payment until 1 July 1994 or later. However, unlike the Government's proposed amendment, Mr Chang's proposal may benefit a taxpayer who entered into a contract after 30 March 1995, received a pension or annuity before 1 July 1995, and had a birthday between the date of entering into the contract and the date of receiving the first payment. However, these circumstances are relatively unlikely. [4]

2.21 Noting the proposed amendment, which was subsequently made, the Committee thanked the then Assistant Treasurer for this response to the issue.

Example: Taxation Laws Amendment Act (No 4) 1995

2.22 This Act received Royal Assent on 16 December 1995. Among other things, it sought to ensure that the capital gains tax (CGT) provisions applied to amounts realised from the disposal of taxable Australian assets used to produce franked dividends or income subject to withholding tax. Item 34 of Schedule 1 to the Act stated that this provision was to apply to amounts realised on the disposal of such assets on or after 20 September 1985 – the date on which the CGT provisions became effective. However, the Explanatory Memorandum stated that this provision did not apply to transactions commenced before 9 May 1995 where the transaction was covered by a private binding ruling issued by the Commissioner of Taxation.

2.23 The Committee raised with the Treasurer the question of whether he would make this provision applicable to taxpayers who, while not having sought a private binding ruling from the Commissioner prior to Budget night, had relied on the then wording of the legislation.

2.24 In general terms, the then Assistant Treasurer responded that: [5]

• any interpretation of the law which had the effect of exempting the amounts realised on disposals of taxable Australian assets from CGT would be contrary to the clear intention of the Parliament as reflected in the Tax Act;
• the system of private binding rulings was intended to afford certainty to taxpayers in conducting their affairs – where a taxpayer received such a ruling, the Commissioner was bound to apply the law as stated in the ruling even where it conflicted with the general operation of the law;
• those taxpayers who did not obtain a private binding ruling, and who purported to rely on an incorrect interpretation of the law, did so at their own risk; and
• it would be inequitable to concede that a non-resident taxpayer who did not obtain a private binding ruling could escape tax on the disposal of taxable Australian assets given that resident taxpayers would have been liable to CGT on disposal of the same assets.

2.25 In its Eighteenth Report of 1995, the Committee thanked the then Assistant Treasurer for this response. However, it regarded the matter of private binding rulings as essentially irrelevant to the main issue, which was whether the true effect of the provisions in issue was being overturned retrospectively by this amendment.

2.26 The Committee had sought the Treasurer's advice on the basis that the then wording of the legislation supported the effect which the amendment was designed to preclude, not only in the future but retrospectively. Paragraph 2.27 of the Explanatory Memorandum stated that “it has been argued that the CGT exemption” applies in certain circumstances. It was not clear whether a taxation review body or a court had, in recent times, accepted this argument, and the retrospective amendment had been proposed to preclude such bodies from acting on that interpretation, or whether the amendment merely ratified an interpretation which such bodies had always held.

2.27 The Committee sought further clarification on this point. The then Assistant Treasurer responded that:

The assertion that certain taxable Australian assets are not subject to capital gains tax (CGT) is based on a technical argument that such assets are exempt from CGT because they are used to produce exempt income. This interpretation relies on a specific exemption in the CGT provisions for gains realised on the disposal of assets used solely to produce eligible exempt income. For example, in past years assets used to produce income from gold mining would have been exempt from CGT on disposal. Such income was also exempt from income tax. This can be contrasted with shares in Australian companies which are used to produce dividends. Such income is only excluded from the assessable income of a non resident taxpayer because tax is withheld at source on the dividend or the dividend is fully franked. The exemption is therefore an exemption from double taxation, rather than an exemption from income tax as such. [6]

2.28 The Assistant Treasurer referred to the proposition that capital gains realised on the disposal of these taxable Australian assets should be exempt from tax. He said that adopting this argument would mean that CGT would never be payable on disposals by non-residents of shares in Australian companies. This would be contrary to the clear intention of the Parliament.

2.29 The Assistant Treasurer noted that the operation of the relevant provisions had not been considered by any Court or Tribunal. He pointed to the lack of agreement amongst those who advise on taxation law that such an exemption existed. Further, there was nothing inherent in the nature of such assets, or the income produced by them, which would warrant such an exemption on policy grounds. Therefore, in the absence of a generally accepted view that the legislation supported such an exemption, those taxpayers who had chosen not to clarify their position by seeking a binding ruling should have to pay tax on gains from the sale of taxable Australian assets.

2.30 The Committee thanked the then Assistant Treasurer for this clarification.

Example: Taxation Laws Amendment Bill (No 6) 1997

2.31 This Bill proposed to introduce a new section 61A into the Income Tax Assessment Act 1936 (ITAA). This new provision, which was announced in the 1997-98 Budget, was an entirely retrospective measure. It was intended to ensure that the depreciable assets of tax exempt entities which became taxable before 3 July 1995 were brought into the tax system at their notional written down values (NWDV) calculated by `including section 57AG loadings'. Entities which became taxable on or after this date were already required to use this formula.

2.32 This new section was said to accord with the Commissioner of Taxation's long-standing view of the way in which the depreciation provisions of the ITAA operated in such circumstances. Apparently, the Commissioner's view had been generally accepted. Nevertheless, the Committee sought the Treasurer's advice as to whether personal rights might be affected by the retrospective application of this provision.

2.33 The Assistant Treasurer responded that the Commissioner's view had been opportunistically challenged on a limited number of occasions over recent years:

The direct risk to the revenue presented by these challenges to the Commissioner's view is substantial. The potential flow on effect to other taxpayers who have complied with the Commissioner's interpretation increases that already considerable revenue risk. For example, in one particular challenge [which has now progressed to the stage of an appeal to the Administrative Appeals Tribunal under Part IVC of the Taxation Administration Act 1953 (TAA)] the transition taxpayer is contending for an interpretation of section 61 of the ITAA which produces the anomalous result that its depreciable assets would be brought into the tax system at their original acquisition costs. This interpretation totally ignores the taxpayer's prior use of those assets for the purposes of producing exempt income. The Commissioner has repeatedly advised this taxpayer, commencing well before its transition time, of his view that it is required to use the NWDV including section 57AG loadings basis.

Following the introduction of Schedule 10 into Parliament, the commissioner became aware of an isolated instance of a taxpayer that had received a private binding ruling under Pt IVAA of the TAA which is, to some extent, different from the new section 61A. In the interests of fairness and equity, the Government amended TLAB 6 in the House of Representatives to insert a savings clause to protect any such taxpayers who may have previously received a private binding ruling.

The Government believes that the risk to the revenue warrants the retrospective measure contained in Schedule 10. The Government does not believe that the measure will trespass unduly on personal rights having regard to the widespread acceptance and compliance with the Commissioner's interpretation of section 61 of the ITAA, the opportunistic nature of the limited challenges to his view, and the protection that the savings clause will afford to any taxpayer who may have previously received a private binding ruling. [7]

2.34 The Committee thanked the Assistant Treasurer for this response, noting the amendment with regard to private binding rulings which had been introduced.

Example: Marine Personnel Legislation Amendment Bill 1996

2.35 Item 9 of Schedule 2 to this bill proposed to add to the general regulation making power in section 121 of the Occupational Health and Safety (Maritime Industry) Act 1933 the words “including regulations imposing penalties (not exceeding 10 penalty units) for a contravention of the regulations”. Subclause 2(3) of the bill proposed to apply this item retrospectively from 18 July 1994, immediately after the commencement of section 121.

2.36 In Alert Digest No 14 of 1996 the Committee questioned the need for such a provision, given that the existing general regulation-making power would include the power to impose penalties for contraventions of the regulations. The Committee further noted the assertion in the Explanatory Memorandum that the retrospective commencement would be to no-one's detriment “because no penalties have been imposed under those regulations (and no prosecutions are pending)”.

2.37 In response, the Minister quoted advice from the Attorney-General's Department that the regulation-making power under section 121 “may be wide enough to support the inclusion of pecuniary penalties relating to the regulations that create offences, but it is at least arguable that it is not”. The Attorney-General's Department therefore recommended that the Act be amended as soon as possible to provide a specific power to make regulations that prescribe penalties:

The amendment is proposed as a retrospective amendment to remove any doubt about the validity of the penalties in the regulations. If a court was to rule that section 121, as in force when the regulations were made, did not support the inclusion of pecuniary penalties in the regulations, then the existing penalties in the regulations would be ultra vires. The impact of the retrospectivity on people's rights and liberties will be negligible, as no penalties have been imposed under the regulations and no prosecutions are pending. [8]

2.38 While thanking the Minister for this response, the Committee continued to express concern at the need for retrospectivity. In the Committee's view, the impact of the retrospectivity would be “far from negligible if, at some future time, a prosecution is launched in respect of this past period which relies on the retrospectivity to maintain the validity of the penalty”.

2.39 The Bill was subsequently passed by both Houses with no amendments having been moved, and received Royal Assent on 8 March 1997.

Example: Crimes Amendment (Controlled Operations) Bill 1996

2.40 Legislation may apply retrospectively by criminalising conduct which was lawful when it occurred. However, this is not the only way in which legislation with a retrospective effect may unduly trespass on personal rights and liberties. In considering the Crimes Amendment (Controlled Operations) Bill 1996 (on which it had also commented during the 37th Parliament) the Committee drew particular attention to the transitional provisions in Division 3 of the Schedule to that Bill. These provisions were in response to the High Court decision in Ridgeway v R (1995) 184 CLR 19. In that case, the Court held that evidence should generally not be admitted where law enforcement officials had themselves broken the law by committing an element of the offence for which the accused person was being prosecuted.

2.41 In response, the Bill proposed to make this kind of evidence admissible against an accused person in a narcotics case. The Committee was concerned that the Bill was `retrospective' in applying to prosecutions brought after its passage which related to offences committed before the High Court's decision in Ridgeway.

2.42 The Minister advised the Committee that:

The transitional provisions contained in Division 3 are only partly “retrospective” in that they lay down a rule of evidence in future cases, by reference to law enforcement conduct that has taken place in the past. The Bill will not, therefore, unsettle the result in any case in which the admissibility of evidence is determined before the Bill's commencement.

Without the transitional provisions a number of significant prosecutions for Commonwealth narcotics trafficking offences will be undermined. In four cases already the Director of Public Prosecutions has been forced to drop a proposed Commonwealth charge.

I believe that the Bill strikes a careful balance between the need to protect personal rights and liberties and the need to protect the community through effective enforcement.

2.43 The Committee commented that making evidence obtained illegally before Ridgeway admissible in cases prosecuted after that decision had “the flavour of some retrospectivity about it”. Whether the Bill unduly trespassed on rights and liberties was again a matter which was appropriately settled by debate in the Chamber. The Bill was passed by both Houses of the Parliament, and received Royal Assent on 8 July 1996.

Example: Migration Legislation Amendment Bill (No 2) 1996

2.44 Clause 2 of this bill provided that it should be taken to have commenced on the day the bill was introduced into the Parliament (19 June 1996), rather than on the day the bill ultimately received Royal Assent.

2.45 In general terms, the bill concerned the right of those in immigration detention to receive relevant information about Australian law. The Refugee Advice and Casework Service (RACS) had sought access to a group of detainees who had arrived on a boat known at the “Teal”. The Department refused access on the basis of its interpretation of section 256 of the Migration Act 1958, which required detainees to first request such assistance.

2.46 RACS subsequently lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC). The basis of this complaint was that “holding the `Teal' detainees in isolation and incommunicado may be in breach of, inter alia, Article 9(4) of the International Covenant on Civil and political Rights” [9]. HREOC responded favourably to this complaint and forwarded to the Department a letter in a sealed envelope together with a covering letter requesting that the sealed letter be delivered to the detainees.

2.47 The Department subsequently refused to deliver the sealed letter to detainees. HREOC then filed an application in the Federal Court, and Mr Justice Lindgren concluded that the HREOC Act did give detainees the right to have the sealed envelope delivered to them.

2.48 In Alert Digest No 4 of 1996, the Committee considered that the retrospective operation of this legislation could put Departmental officers in an invidious position:

The Federal Court has ruled that the law in Australia at the present time requires the custodial officer to deliver any sealed envelope to the detainee that comes from the Human Rights and Equal Opportunity Commission or the Ombudsman. If such an envelope were to arrive today, 26 June 1996, the custodial officer would be breaking the law if he/she failed to deliver it. There is no guarantee that this legislation will be passed, or, if passed, will be passed in the same terms as the proposed bill, specifically that the legislation will be given a commencement date of 19 June 1996 …

The net effect is if the custodial officers act within the rule of law and obey the law as it stands the proposed retrospective effect will be nullified. In order to give the proposed law retrospective effect the officers concerned need to break the present law … On the other side of the coin is the detainee who has a right to have the envelope delivered. If the envelope is not delivered, that right is taken away, not by law, but by a presently unlawful act on the dubious grounds that perhaps Parliament will pass a proposed law that will have retrospective effect to make the unlawful act lawful. This is an instance of where retrospectivity could have a very serious effect on the rights of people.

2.49 In response, the Minister denied that Departmental officers had been placed in an invidious position. A Federal Court appeal concerning the rights of a specific group of detainees had been settled, and, with the consent of the Human Rights Commissioner and the Commonwealth Ombudsman, the law was now being administered as if the bill had been passed.

2.50 The Committee accepted that, once the appeal had been lodged and a stay order made, departmental officers “could quite properly await the outcome of the appeal and so not be in the `invidious position' discussed”. However, the Committee noted that the appeal had been settled by consent. Should another group of people arrive in Australia and be detained before the legislation was passed, the invidious position could recur.

2.51 Interestingly, the bill was not passed during the 38th Parliament.

Example: Bankruptcy Legislation Amendment Bill 1996

2.52 There are occasions when, to determine whether retrospectivity trespasses unduly on personal rights and liberties, the Committee must assess the competing interests of the parties affected and weigh each against the other or others.

2.53 In Alert Digest No 5 of 1996, the Committee observed that this bill proposed to insert new sections 120 and 121 in the Bankruptcy Act 1966. These new sections (which deal with transfers of property for inadequate value, and with transactions to defeat creditors) would increase the range of actions by a bankrupt which were to be void as against the trustee in bankruptcy. As some of the actions affected might have occurred up to five years before the bankruptcy commenced, the amendments, if passed, could be expected to have considerable retrospective application.

2.54 The Attorney-General advised the Committee that three possible alternative approaches had been considered before these provisions were adopted:

• no retrospective operation at all, where the amendments would apply only to a transfer of property effected after their commencement;
• partial retrospective operation, where the amendments would apply only to a bankruptcy occurring after their commencement; or
• full retrospectivity, where the amendments would apply to an existing bankruptcy.

2.55 Under the first option, neither bankrupts nor persons who had received property from them at less than market value before the new provisions came into force would have been disadvantaged. However, people who were creditors before the enactment would be denied its benefit. If the enactment were not to be made retrospective, the result could be that the same estate could come to be administered under two laws, because various properties in it happened to be disposed of by the bankrupt at different times.

2.56 Under the second option, there would still be some retrospective effect where a relevant action occurred before the amendments became law and the transferor became bankrupt after their enactment. This option would enable prospective bankrupts to restructure their affairs to take account of the amendments.

2.57 The Attorney-General continued:

While (on its face) retrospectivity is undesirable, in considering the options the interests of creditors need to be weighed against those of the bankrupt and persons who have received property that was transferred to them at less than market value. While a change to commencement would protect bona fide transferees it would also protect transfers that were entered into to defeat creditors in an impending bankruptcy.

If the proposed provisions apply to all bankruptcies, then maximum protection of creditors' interests is achieved. If they apply only to transfers effected after commencement, then it seems that, transferees' interests are protected.

Because of the nature of the transactions that are the subject of the amendments (ie there must have been a transfer at less than market value) this is likely to be the bankrupt's family or associated entities in many cases and therefore, indirectly, the bankrupt. For this reason, retrospectivity in these circumstances, while it may seem to infringe one sector's rights, could also protect the rights of another, those of creditors. [10]

2.58 The Committee accepted that the amendments as proposed provided the fairest balance between the interests of bankrupts, creditors and those of third party transferees.

Legislation by press release and the `six month' rule

2.59 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 introduce it is made public. This intention is frequently announced by press release.

2.60 The Committee's practice is to draw attention to legislation by press release. The fact that a proposal to legislate has been announced is no justification for treating that proposal as if it were enacted legislation. As the Committee has previously noted, “publishing an intention to process a bill through Parliament does not convert its provisions into law; only Parliament can do that”. [11]

2.61 As a general principle, the Committee disapproves of legislation by press release for two reasons. First, proposals are not enacted legislation and to treat them as such is to act outside the law. Secondly, when the legislation becomes an Act, the Act is drafted so that it operates retrospectively and therefore infringes the Committee's criteria. 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 the 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. 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. [12]

2.62 The Committee has noticed that, since it made these comments, the use of legislation by press release seems to have declined. The issue does still arise with amendments to tax legislation made retrospective to the date of their announcement, whether by press release or in the Budget. Some examples of the Committee's approach to this issue during the 38th Parliament are set out below.

Example: Taxation Laws Amendment Bill (No 2) 1997

2.63 In Alert Digest No 2 of 1997, the Committee noted that various amendments proposed in this bill gave effect to an announcement by the Treasurer in June 1996. The bill was introduced more than 6 months after this announcement. The Committee was unaware of any draft bill having been published in the interim and sought the Treasurer's advice on the application of the resolution of the Senate of 8 November 1988 to the bill. That resolution, which deals only with taxation legislation, states that:

… 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. [13]

2.64 In response, the Treasurer pointed out that the amendments had first been announced by the previous Government on 6 December 1995. No draft legislation was released by that Government between the announcement and the calling of the general election on 27 January 1996. The amendments were re-announced by a press release on 25 June 1996. On 31 July 1996, another press release announced the release of draft legislation:

The draft legislation was released by the Government within 5 months of the Government being sworn in on 11 March 1996. The 8 week period by which the release of the draft legislation exceeds the 6 month period noted by the Senate can be attributed to the 14 weeks between the announcement by the previous Government on 6 December 1995 and the swearing in of the Government on 11 March 1996. [14]

2.65 The Committee thanked the Treasurer for this response, which adequately explained the delay.

Example: Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997

2.66 In Alert Digest No 14 of 1997, the Committee noted that the measures contained in this bill (which was introduced on 1 October 1997) were generally to take effect from 9 May 1995, the date they were announced in the 1995 Budget. The Committee noted that the present Government had announced in its 1996 Budget that it intended to proceed with the previous Government's 1995 declaration that trust loss rules would be introduced into income tax law. However, in making this announcement, the Government stated clearly that several significant changes would be made to the draft legislation of the previous Government. Further modifications of the proposals were contained in the 1997 Budget.

2.67 The Committee drew attention to the principle which underlies the fair operation of legislation from the date its announcement whether in the Budget or by press release, namely “that legislation amending taxation law retrospectively from a date so announced should be introduced quickly after it is announced”. The present bill had been introduced more than 12 months after the date of its original proposal. Given the delay, the Committee sought the Treasurer's advice as to whether the provisions of the bill should apply only from the current financial year.

2.68 The Treasurer responded that the trust loss measures were proposed by the previous government on 9 May 1995. Legislation was introduced into the Parliament in September 1995 (within 6 months of the announcement). However, the trust loss measures were excised from this legislation by the Senate and referred to the Senate Economics Legislation Committee. Because of the 1996 Federal election, the Committee did not complete its inquiry.

2.69 In the 1996 Budget, the Government announced that it would proceed with the trust loss measures, after making a number of changes, with general effect from 9 May 1995. An exposure draft of the proposed measures was released on 10 February 1997 for public consultation (within 6 months of the Budget announcement on 20 August 1996). As a result of the consultative process, the Government announced further changes in the 1997 Budget, and the legislation was introduced into the Parliament on 1 October 1997 (within 6 months of the Budget announcement on 13 May 1997).

In the circumstances, I do not believe that the trust losses Bill breaches the principle behind the Senate resolution of 8 November 1989. Taxpayers have had the benefit of draft legislation since September 1995. Even though the detail of the legislation introduced into the Parliament by this Government on 1 October 1997 differs in some respects to the previous Government's legislation, the changes are generally beneficial to taxpayers. Any changes that are disadvantageous to taxpayers do not commence prior to the date they were announced by this Government. [15]

2.70 While thanking the Treasurer for this response, the Committee was not persuaded that the proposed commencement date of 9 May 1995 was within the spirit of its previously expressed views on when retrospectivity might be acceptable. The Committee expressed its concern at the uncertainty that the delay in implementing these measures had created, and continued to draw Senators' attention to them.

2.71 On 23 March 1998, the Australian Democrats moved a Senate amendment to address the issue of retrospectivity. The Assistant Treasurer drew attention to certain perceived technical deficiencies with this provision:

[T]he amendment directly conflicts with other provisions in the bill; it may allow the use of deductions by a trust that would otherwise be disallowed under the existing provisions of the law; it is unclear how the portion of the loss for the 1994-95 income tax year incurred before 9 May 1995 would be calculated given that tax losses are normally worked out on a whole of income year basis; the amendment refers to losses being declared in a trust's taxation return for the 1994-95 income year – until recently trust returns did not provide for losses to be separately listed and losses for income years before 1994-95 would not be declared in the 1994-95 tax return; and, finally, it is unclear whether the amendment would apply to debt deductions and quarantined foreign losses, which were also dealt with by the bill. [16]

2.72 Ultimately, the amendment was not agreed to and the bill was passed with the commencement provisions as originally drafted.

Abrogation of the privilege against self-incrimination

2.73 At common law people can decline to answer a question on the grounds that their reply might tend to incriminate them. Legislation which interferes with this common law entitlement trespasses on personal rights and liberties and causes the Committee considerable concern.

2.74 At the same time, the Committee is conscious of the need good government has for enough information to enable it to properly carry out its duties to the community. Good administration in some circumstances might necessitate the obtaining of information which can only be obtained, or can best be obtained, by forcing someone to answer questions even though this means that he or she must provide information showing that he or she may be guilty of an offence. Those proposing a Bill which affects or removes a person's right to silence usually do so on this basis.

2.75 The Committee does not see the privilege against self-incrimination as absolute. However, before it accepts legislation which includes a provision affecting this privilege, the Committee must be convinced that the public benefit which will follow from its negation will decisively outweigh the resultant harm to the maintenance of civil rights.

2.76 When dealing with the Prawn Export Promotion Bill 1994, the Committee elaborated on this test as follows:

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. [17]

2.77 One of the factors the Committee considers is the subsequent use that may be made of any incriminating disclosures. The Committee generally holds to the view that the interest of having government properly informed can more easily prevail where the loss of a person's right to silence is balanced by a prohibition against both the direct and indirect use of the forced disclosure. The Committee is concerned to limit exceptions to the prohibition against such use. In principle, a forced disclosure should be available for use in criminal proceedings only when they are proceedings for giving false or misleading information in the statement which the person has been compelled to make.

2.78 Some examples of the Committee's approach during the 38th Parliament to legislation abrogating the privilege against self-incrimination are set out below.

Example: Australian Radiation Protection and Nuclear Safety Bill 1998

2.79 In Alert Digest No 6 of 1998, the Committee observed that subclause 55(1)(e) of this Bill authorised an inspector to require any person on particular premises to answer any questions put by the inspector, and to produce any documents requested by the inspector. Subclause 55(2) made compliance an absolute requirement, with no provision for non-compliance even where a person had a reasonable excuse. As a consequence, subclause 55(2) removed the privilege against self-incrimination and did not contain the safeguards often included in such provisions. [18].

2.80 The Committee sought the Minister's advice as to why subclause 55(2) made no provision to excuse a person who failed to comply with it because he or she had a good reason for failing to do so – for example, where the information required was likely to incriminate him or her. The Minister responded that advice from the Attorney-General's Department to the Department of Health and Family Services indicated that it was “highly likely” that subclause 55(2) did not abrogate the privilege against self-incrimination:

Under clause 10 of the Bill, Chapter 2 of the Criminal Code will apply to the offences in the Bill. It is considered that the Code will not alter the application of the privilege against self-incrimination at common law to Commonwealth offences. That is, the privilege will continue to apply in relation to a Commonwealth law requiring the answering of questions unless the law expressly or by necessary implication indicates a contrary intention: Sorby v The Commonwealth (1983) 152 CLR 281 at 309.

2.81 The Committee thanked the Parliamentary Secretary for this response. While addressing some of its concerns, the Committee noted that the advice of the Attorney-General's Department was persuasive, but not definitive. The intention appeared to be that the privilege against self-incrimination should continue to apply to offences under clause 55. Were this the intention, there seemed little difficulty in expressly providing for it. Such an approach would remove any uncertainty. Accordingly, the Committee sought the Minister's advice as to whether there was any difficulty which prevented the Bill expressly providing that the privilege against self-incrimination should continue to apply to offences against clause 55.

2.82 On this matter, the Parliamentary Secretary responded:

Whilst it is clearly our intention that the privilege not be abrogated, any provision within any legislation is ultimately subject to interpretation by the Courts. If, despite our intentions, there proves to be an ambiguity on the face of the legislation, a Court will be entitled to refer to, among other things, the Explanatory Memorandum accompanying clause 55.

To assist the Courts in their interpretation, and to clarify the intent of the provision, I will issue a corrigendum to the Explanatory Memorandum to the bill which will clarify that the provision is not intended to abrogate the privilege against self incrimination.

The corrigendum to the explanatory memorandum will state:

“Subclause 55(2) does not have the effect of abrogating the privilege against self incrimination.”

2.83 The Committee thanked the Parliamentary Secretary for clarifying the issue.

Example: Customs and Excise Legislation Amendment Bill (No 2) 1996

2.84 Among other things, this bill proposed to insert subsection 164AC(15) into the Customs Act 1901 and subsection 78AD(15) into the Excise Act 1901. These subsections would empower the Chief Executive Officer of Customs (CEO) to obtain information for the purposes of auditing a particular diesel fuel rebate application. In so doing, they took away the right of a person not to comply when asked to provide information or to produce records with respect to the diesel fuel rebate.

2.85 In Alert Digest No 1 of 1997, after referring to the need in such situations to balance the public interest in maintaining human rights against the public interest in having access to needed information, the Committee observed that the proposed subsections did give some protection to those affected: the direct or indirect use of any material disclosed was inadmissible in certain criminal proceedings. However, there was no immunity from prosecution under paragraphs 234(1)(c) or (d) of the Customs Act 1901, or 120(1)(vc) or (vi) of the Excise Act 1901 in relation to the diesel fuel rebate.

2.86 On this issue, the Minister accepted the proposition that the right to silence should only be taken away in exceptional circumstances. However, he responded that the amendments to improve accountability under the Diesel Fuel Rebate (DFR) Scheme through new audit provisions and penalty sanctions “rely on a claimant's right to silence in audits conducted under the Scheme being taken away”. The reasons for taking this approach were:

• the DFR Scheme (which costs approximately $1.4 billion pa) is, essentially, honour-based, relying on the integrity of users and the soundness of the information they supply;
• the amendments (and a new 3-tiered penalty regime) were prompted by criticisms of the structure of the Scheme by the Australian National Audit Office;
• under the penalty regime, the most serious offences involve situations where a claimant knowingly or recklessly obtains or retains a rebate that is not payable, or makes a false or misleading statement (see paragraphs 234(1)(c) and (d));
• the next level of penalty applies in relation to the new strict liability offences (of failing to notify Customs of specified events which render one ineligible for a rebate, or failing to substantiate an entitlement to rebate through the new audit powers of diesel fuel records);
• finally, there is a more flexible administrative penalty option, which may be applied to the strict liability offences – in the same manner as provided for in a traffic infringement notice. If the person concerned elects not to pay then they may be prosecuted for the strict liability offence;
• it is appropriate that forced disclosure not lead to immunity from prosecution for the most serious offences involving intent “because the offences are specific to the DFR Scheme itself”;
• audits under the Scheme will be conducted on a risk assessment basis, and, given that 220,000 claims are received, the chances of any individual being audited are low; and
• in a Scheme with such a huge call on the public purse, and where claimants are audited on a risk-assessment basis, “it is not considered appropriate to only impose a sanction which in effect only returns to the Commonwealth amounts which should not have been claimed in the first place. Given the comparatively law risk of audit, such a sanction would simply encourage the unprincipled to `play the odds'”.

2.87 In summary, it was said to be in the public interest that applicants under the Scheme forgo the right to silence in relation to audits, and in any subsequent proceedings under the Act, because of the significant amount of money invested in the Scheme; because participation in the Scheme was optional; and because the information which would typically be sought under the audit provisions was almost exclusively in the possession of the applicant for rebate.

2.88 The Committee thanked the Minister for this comprehensive response. However, it was not persuaded that a decision to institute only a minimal audit system justified excluding immunity from prosecution for offences revealed under forced disclosure. The Committee considered that a balance needed to be struck between the amount of revenue to be protected and the resources devoted to protecting it. It considered that a resort to prosecution where the offence was disclosed under `duress' was a questionable strategy.

2.89 On 17 June 1997, the Australian Democrats moved amendments to address the issue of the right to silence, and these amendments were passed with the support of all parties. [19].

Reversal of the onus of proof

2.90 At common law, it is ordinarily the duty of the prosecution to prove all the elements of an offence; 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. The Committee usually comments adversely on a bill which places the onus on an accused person to disprove one or more of the elements of the offence with which he or she is charged.

2.91 The Committee's general practice over the years has been to adopt the approach of the (then) Senate Standing Committee on Constitutional and Legal Affairs, as expressed in its report The burden of proof in criminal proceedings. In that report, the Constitutional and Legal Affairs Committee stated that it was 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. [20]

2.92 In recent years, the Committee has commented on an apparently growing tendency in Commonwealth legislation to reverse the onus of proof. For example, in its Nineteenth Report of 1992 the Committee discussed certain provisions of the Tobacco Advertising Prohibition Bill 1992 in the following terms:

… 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. [21]

2.93 During the 38th Parliament, the Committee commented on a number of clauses which reversed the onus of proof. Some examples are set out below.

Example: Constitutional Convention (Election) Bill 1997

2.94 In Alert Digest No 6 of 1997 the Committee observed that certain provisions of this bill would reverse the onus of proof in prosecutions for offences which related to maintaining the integrity of the ballot for the Constitutional Convention election. In general terms, the bill declared it an offence to make any official mark on a paper, or to possess a paper bearing an official mark, or to possess any instrument capable of making an official mark on any paper, without lawful authority, proof of which was to lie on the alleged offender. Similarly, a person who, without lawful authority (proof of which was to lie on that person) purported to make an official mark on a ballot paper was to be taken to have forged that ballot paper.

2.95 The Committee acknowledged that section 346 of the Commonwealth Electoral Act 1918 reverses of the onus of proof in comparable circumstances. However, that section predated the establishment of the Committee, which had not previously had an opportunity to comment on such legislation. The Committee felt that the Explanatory Memorandum failed to justify the reversal of the onus of proof in the legislation. The Minister responded to the Committee's request for further advice on this provision by observing that:

The words ("proof thereof is to lie upon the person") contained in clause 139 of the Bill were the subject of Government Amendments to the Bill introduced in the House of Representatives on 15 May 1997. The amendments omit those words thereby withdrawing the reversal of onus of proof.

The inclusion of those words in the Bill was an editing oversight. [22]

2.96 The Committee thanked the Minister for this response, which addressed its concerns.

Example: Telecommunications Bill 1996

2.97 In Alert Digest No 1 of 1997 the Committee observed that clause 280 of this bill would reverse the onus of proof in a criminal prosecution for an offence relating to the disclosure of information or documents to do with the provision of carriage services.

2.98 In general terms, the bill made available to a person charged with such a crime a defence of `belief on reasonable grounds that disclosure was reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of another person'. Subclause 280(1) provided that a person who wanted to rely on this defence would have to raise it, and had the burden of proving that it applied at the time of the alleged crime.

2.99 The Committee observed that, in the past, it had at times been prepared to accept a reversal of the onus of proof where the matters to be raised by way of exculpation were peculiarly within the knowledge of the accused. This issue is discussed below in paragraphs 2.105 to 2.108.

2.100 The Committee went on to observe that the legislation should deter the reckless disclosure of information on too superficial an assessment of a threat to life or health. However, the reasonable disclosure of information where a serious and imminent threat existed should not be inhibited. The Committee was concerned that requiring an accused person to establish, on reasonable grounds, that disclosure was reasonably necessary to prevent or lessen a serious or imminent threat seemed to favour deterrence, and might unnecessarily induce in him or her a caution which might inhibit necessary and timely action.

2.101 While an accused might best know his or her own belief on a particular occasion, other elements relevant to the commission or otherwise of an offence were fairly objective – for example, the seriousness of the threat, the imminence of the threat and how the health of the person would be affected. Further, the accused must establish not only that there were reasonable grounds for the belief but that the disclosure was reasonably necessary. The Committee considered that a person who innocently disclosed information might have difficulty in later establishing reasonable grounds for doing so.

2.102 The Committee considered that, in a case of this nature, the decision to prosecute ought be made only after an objective assessment that the person could not have had reasonable grounds for forming such a belief. Given that, the question arose as to whether requiring the prosecution to prove the lack of reasonable grounds would be extremely difficult and costly.

2.103 The Committee took the view that, in an apparent emergency, it was better to err on the side of action. Placing the onus of proof on the accused might inhibit this. Therefore, the Committee sought the Minister's reconsideration of the necessity to reverse the onus of proof in this case.

2.104 The Minister responded:

I thank the Committee for drawing to my attention its concerns about this clause and I agree with the views expressed by the Committee. Accordingly, the Government will move an amendment to the clause so that the exception under clause 272 will be treated the same as the other exceptions in Division 3 of Part 13.

The onus in issues of belief and intent

2.105 While an accused is generally in the best position to know what he or she believed at the time of an alleged crime, this alone should not determine the issue of who should bear the onus of proof in establishing whether or not a crime has in fact been committed. A person's belief in carrying out an action goes very much to the issue of his or her intent when doing so. The prosecution usually bears the onus of proving all elements of a charge it brings against a person, including his or her intent. This is so even with the most serious of charges such as those of murder and of rape.

2.106 There are means of proving a person's belief when carrying out an action, and his or her intent in doing so, other than by him or her giving evidence about them at a court hearing into the matter. For example, a prosecutor can use the circumstances and the context of an accused's action to show that he or she must have had a particular belief when carrying it out and a criminal intent while performing it. Or a prosecutor can make use of admissions made by the accused either by words or conduct prior to him or her coming to court.

2.107 Where a person's belief at the time he or she carries out an action goes to the issue of his or her intent in performing it then the onus of proving that belief should generally be on the prosecution.

2.108 Where legislation provides that a particular state of belief is to constitute an excuse for carrying out an action which would otherwise be a crime, and in that way allows a defence to a person who is accused of committing one, the Committee will more readily accept the onus of proof being placed on him or her to prove that excuse. The accused should have to discharge any onus on the balance of probabilities only.

Strict liability offences

2.109 An offence is one of strict liability where it provides for people to be punished for doing something, or failing to do something, whether or not they have a guilty intent. In other words, someone is held to be legally liable for their conduct irrespective of their moral responsibility. The Committee will draw the Senate's attention to provisions which create such offences.

2.110 However, such offences may be acceptable in certain circumstances. In Alert Digest No 9 of 1997, the Committee considered the Aviation Legislation Amendment Bill (No 2) 1997. In part, this bill provided for a new administrative plan for passenger screening in sterile areas at airports. This scheme, which replaced a similar one considered by the Committee in 1995, included a number of strict liability offences and provided for the reversal of the onus of proof in respect to some of them.

2.111 The Committee considered the new scheme in light of the reasons put forward in support of the earlier 1995 one. The Explanatory Memorandum for the bill which proposed the 1995 scheme noted that it covered two categories of offences:

• offences directed at members of the aviation industry – principally airlines and airport operators. As these offences were concerned with ensuring public safety on aircraft, and as their significant nature made it important to discourage careless non-compliance as well as intentional and reckless breaches, they had been characterised as strict liability offences with reasonable excuse as a defence; and
• offences directed at individuals not employed within the aviation industry – for example, passengers and visitors. These offences, which were seen as supporting, rather than forming part of the aviation security system, included the standard mental element of intention or recklessness.

2.112 This explanation was also directly relevant to the new scheme. The Committee concluded:

Given the importance of the matters attended to by this legislation, the reality that the people to whom it is to apply are members of a confined class who can reasonably be expected to be fully aware of the crucial nature of the issues with which it deals, the fact that imprisonment is not a sanction for its breach and the high level of public benefit it seeks to achieve, the committee considers it does not unduly trespass on personal rights. [23]

2.113 In its Thirteenth Report of 1997, the Committee considered proposed amendments to the Customs Act 1901, the Excise Act 1901, and various other Acts which created offences of strict liability in relation to fuel substitution. The Minister advised that strict liability was appropriate in these circumstances because the practice of fuel substitution:

• was estimated to result in an annual loss of revenue of at least $26 million;
• adversely affected consumers in several ways (engines were often ruined by the use of blended fuel); and
• took advantage of the fact that the process of entering fuel for home consumption for a particular use was largely an honour-based system, relying on the honesty of a dealer not to divert concessional fuel to a non-concessional use.

2.114 In addition, regulations would provide that the audit powers conferred on Customs officers for the purposes of the legislation could only be exercised in relation to amounts of fuel in excess of 1000 litres. It was reasonable to expect that “persons who are in the business of voluntarily dealing in amounts of fuel exceeding 1000 litres should bear both the obligation of taking steps to find out whether that fuel is marked fuel, and the responsibility of maintaining the integrity of that fuel while it is in their charge”. While the offences were of strict liability, the common law defence of honest and reasonable mistake of fact remained available. Given this explanation, the Committee accepted that strict liability offences were appropriate.

Example: Retirement Savings Accounts Bill 1997

2.115 This bill proposed to allow banks and other financial institutions to offer superannuation schemes without a trust structure in the form of retirement savings accounts. In Alert Digest No 1 of 1997 the Committee noted that clauses 148 and 149 of this bill would make it a criminal offence to make a statement that was not true or to keep a record that was incorrect, with no onus on the prosecution to prove that the maker knew the statement was false or the record incorrect. The prosecution was required to prove only that, objectively, the statement was false or misleading in a material particular. The defendant bore the onus of proving that he or she did not know, and could not reasonably be expected to have known that the statement was false or misleading or that the record was incorrect.

2.116 The Committee acknowledged that serious reasons of public policy might dictate that strict liability offences be created, and that, in these cases, specific statutory defences catered for the legitimate rights and liberties of an accused person.

2.117 The Committee noted that clauses 150 to 154 of the bill provided a comprehensive scheme of offences involving recklessly or intentionally making false statements or keeping incorrect records. These offences required that the prosecution prove intention or recklessness on the part of the accused. The Committee was concerned that such a scheme would see charges laid in the alternative, so that, should the prosecution fail to prove that the accused intentionally or recklessly made false statements or kept incorrect records, he or she would still be faced with the strict liability offences which required him or her to discharge the onus of proof on those issues.

2.118 Given that prosecutors could lay charges against people for intentionally or recklessly making false statements, the Committee sought the Treasurer's advice on the need to create additional strict liability offences.

2.119 The Assistant Treasurer responded by noting that clauses 148 and 149 were included in Part 12 of the Bill. The object of this Part was the maintenance of the integrity of the supervisory framework for retirement savings accounts (RSAs) by proscribing dishonest conduct in relation to the RSA institution's dealings with the ISC or its record keeping requirements.

2.120 The Assistant Treasurer went on to acknowledge that these clauses reversed the onus of proof in a way which would not normally be regarded as acceptable. However, he suggested that “in the case of legislation with a `revenue protection' purpose, a more robust approach has generally been taken to the question of onus of proof”:

Compliance with the RSA legislation allows institutions to accept superannuation contributions which attract substantial and generous taxation concessions. False or misleading statements by RSA providers to ISC officials, or falsification of records, could seriously undermine the capacity of the ISC to investigate breaches of the retirement income standards and institute appropriate remedial action, and the RSA provider may be able to continue to accept concessionally taxed superannuation contributions when they should not otherwise do so. In these circumstances, and given the serious nature of these offences, officers of RSA providers should have to satisfy the onus of proof which applies to any other taxpayer under taxation law generally.

To this end, clauses 148 and 149 have been closely modelled on sections 8K and 8L of the Taxation Administration Act 1953. It should also be noted that the Government has announced that, for reasons of competitive neutrality, RSAs should be subject to superannuation standards consistent with those which apply to other superannuation entities. For this reason, various parts of the RSA Bill have been modelled closely on the Superannuation Industry (Supervision) Act 1993 (the SIS Act). Clauses 148 and 149, in particular, closely mirror sections 302 and 303 of the SIS Act which provide for an identical reversal of the onus of proof for the same policy reasons outlined above. [24]

2.121 The Committee noted and accepted these reasons insofar as they applied to proposed clause 148. However, it remained concerned with respect to clause 149, which appeared to be applicable to something as accidental as a typing error in a statement to an account holder. As such an error could scarcely qualify as a serious offence, the Committee saw merit in the bill attempting to distinguish these less serious offences, and continued to draw the Senate's attention to the provision. Subsequently, the Bill was passed with clause 149 unamended.

Powers of search and seizure without warrant

2.122 The Committee consistently draws the Senate's attention to provisions which allow search and seizure without the issue of a warrant. As a general rule, a power to enter premises without the consent of the occupier, or without a warrant, trespasses unduly on personal rights and liberties, and the Committee will draw the grant of one to the Senate's attention. A provision giving an authority such a power will be acceptable only where the circumstances and gravity of the matter in question justify one being given.

2.123 The Committee rarely approves of provisions which give the power to issue warrants to legally unqualified or non-judicial officers, such as justices of the peace. In its examination of the Telecommunications (Interception) and Listening Devices Amendment Bill 1997, the Committee considered provisions which enabled the Minister to nominate certain members of the Administrative Appeals Tribunal to issue warrants in relation to telecommunication intercepts and the use of listening devices. However, only members who, on appointment to the AAT, had been enrolled as a legal practitioner for not less than 5 years could be nominated.

2.124 The Committee expressed the view that the power to issue warrants should be confined to judicial officers, and, where the power was given to non-judicial officers, the reasons for doing so should be set out in the Explanatory Memorandum. The Committee raised these issues with the Attorney-General, who responded that:

• the amendments were necessary because the Chief Justice of the Federal Court had advised that the judges of his court who presently performed this function had decided to withdraw their consent;
• under the Constitution, this function could not be conferred on judges without their consent; and
• law enforcement agencies were experiencing difficulties obtaining warrants in some areas – for example the Australian Federal Police had to apply to judges in Sydney for interception warrants to assist ACT investigations because no ACT judges would agree to issue warrants.

2.125 Given the intrusive powers provided to the Police Integrity Commission under this bill, the Committee considered the advisability or otherwise of making them subject to a sunset clause. In response, the Attorney-General stated that no sunset clause applied to other intercepting agencies. In addition, as the Police Integrity Commission was simply assuming functions previously performed, and powers previously exercised, by the Independent Commission Against Corruption, there seemed no good reason to impose a sunset clause in this case.

2.126 However, the Committee, referred again to the nature of the powers given under the bill. Whether such powers should continue indefinitely was a matter with which the Parliament should legitimately be concerned. A sunset clause provided an obvious opportunity for a Parliamentary committee to later examine the merits of continuing to grant these powers. While noting the Attorney-General's reluctance to include a sunset clause, the Committee was strongly of the view that the bill should provide for a review by an appropriate Committee within 5 years. [25]

2.127 Subsequently, Senator Brown moved an amendment to include a sunset clause, and the bill was passed with this amendment. [26]

Example: Insurance Laws Amendment Bill 1997

2.128 This bill proposed to amend the Insurance Act 1973 to include a provision which authorised certain persons who were investigating the affairs of a “designated security trust fund” to enter and search premises occupied by fund trustees, custodians or investment managers where the investigators believed, on reasonable grounds, that it was necessary for the purposes of the investigation. This power of entry and search was not subject to any requirement that the officers first obtain a judicially sanctioned warrant. [27]

2.129 The Committee recognised that the proposed provision was similar in form and effect to provisions in the Income Tax Assessment Act 1936 and in the Superannuation Contributions Tax (Assessment and Collection) Act 1997. However, the Committee observed that there appeared to be no basis in principle for giving officers enforcing insurance laws greater powers than officers enforcing criminal laws – where a judicially sanctioned warrant was generally required. The Committee was also interested in receiving advice on what might constitute “reasonable grounds” for exercising the power of entry.

2.130 The Assistant Treasurer responded on 10 March 1998, noting that:

• the bill was intended to change the regulatory requirements for Lloyd's underwriters in Australia, both to accommodate the initiatives in Lloyd's `reconstruction and renewal' plan and to enhance regulatory protection for policyholders;
• the proposed subsection was consistent with similar powers exercisable elsewhere in the insurance and superannuation supervision legislation; and
• the search and entry powers would be exercised only in relation to a limited class of corporations, and would not affect the personal rights and liberties of individuals.

2.131 With regard to what might constitute `reasonable grounds' for entry and search, the Assistant Treasurer noted that the powers would only be used in the most serious of circumstances, and only where a designated security trust fund was under investigation. He summarised the Government's position as follows:

[E]ffective prudential supervision demands an appropriate balance between the capacity for the prudential regulator to intervene quickly, and procedural considerations which protect the rights and liberties of the companies/directors concerned. In an environment of rapid capital mobility and electronic funds transfers, the need for the Commissioner to formally apply for a search warrant could delay or unduly impede critical stages of an investigatory process, and thereby potentially jeopardise the security of policyholder/member interests. When balanced against the threshold checks and balances for instigating an investigation in proposed section 79, the imperatives of prudential supervision and the requirements that the basis and timing of any entry onto premises or land be `reasonable', the Government considers that proposed section 80(1) is appropriate. [28]

2.132 The Committee noted these comments on the intended operation of the legislation, and particularly noted the Minister's expectation that the roles of trustee, custodian and investment manager would be filled only by corporate entities. However, there was no express limitation in the bill confining the exercise of the search and seizure powers so that they could be used against corporate entities only. Therefore, the Committee requested that the Treasurer consider the possibility of an amendment to limit the exercise of these powers to premises other than residential premises.

2.133 Ultimately, the Assistant Treasurer undertook to amend the bill so that an investigator could not use the entry and search powers under proposed subsection 80(1) to enter onto residential premises without the consent of the occupier. [29]

Removing professional privilege

2.134 There is a long-standing principle that professional communications between a person and his or her legal adviser should be confidential. The Committee closely examines legislation which removes or diminishes this right.

2.135 In Alert Digest No 17 of 1997, the Committee noted that clause 55ZH of the Judiciary Amendment Bill 1997 would enable the Attorney-General to issue a Legal Services Direction requiring a person to give information or documents to another person in circumstances that would otherwise constitute a breach of professional privilege. The Committee was concerned that unfairness might result where, for example, a group of private shareholders in Telstra had given confidential information to the solicitor acting for Telstra, and clause 55ZH was then used to force the disclosure of that otherwise privileged information to the Commonwealth at a time when litigation between the Commonwealth and Telstra or those private shareholders was in process or was contemplated. Subclauses (3) and (4) deem that this would not constitute a breach of legal professional privilege. The question also arose as to what use the information obtained might be put.

2.136 On this issue, the Attorney-General responded by first noting that “statutory displacement of legal professional privilege was not unique to the bill”. The proposed power to issue Legal Services Directions requiring the disclosure of information was seen as necessary to maintain and protect the public interest in relation to the legal work undertaken for the Commonwealth, whether by the Australian Government Solicitor or by private lawyers. Examples of public interest factors which such Directions were intended to protect included the need to observe the `model litigant' principle; the need to ensure proper co-ordination of litigation involving common issues across government and consistency in the conduct of Commonwealth litigation; and the need to keep litigation costs to a minimum (for example, by ensuring compliance with controls over counsel's fees).

While it is envisaged that Legal Services Directions will provide a framework for the conduct of Commonwealth litigation, the prime responsibility for conducting this litigation will rest with Departments and agencies. It is therefore expected that the need for the Attorney-General to intervene in the conduct of litigation would only occur where sensitive or strategically important matters arose.

In addition, a purported use of the power to obtain information for an ulterior purpose (for example, to obtain an advantage in particular proceedings) would be invalid and could be successfully challenged in court. This is because of the well-established legal principle that statutory powers can only be used bona fide for the purposes for which they are conferred by the statute …

Further, if information has been obtained pursuant to the compulsory power, its use or disclosure for an ulterior purpose would be unlawful and could be restrained or be subject of a damages award. It is an established legal principle that information obtained pursuant to a statutory power is subject to a legal obligation of confidence … [30]

2.137 The Attorney-General concluded by observing that, by virtue of subclause 55ZH(4), disclosure and use of information under, and for the purposes of, clause 55ZH would not result in the loss of any legal professional privilege that exists in relation to that information, thus constituting an additional bar to the disclosure of the information in legal proceedings.

2.138 This Bill lapsed with the prorogation of the 38th Parliament.

Oppressive powers against a vulnerable class of people

2.139 The Committee will usually comment unfavourably on legislation which makes vulnerable people subject to oppressive bureaucratic powers.

2.140 During the 38th Parliament, the Committee drew the Senate's attention to some provisions of the Migration Legislation Amendment Bill (No 2) 1996. These provisions concerned the operation of paragraphs 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 and 7(3)(b) of the Ombudsman Act 1976.

2.141 Pursuant to powers given to them under these provisions, the Human Rights Commissioner and the Ombudsman can send sealed envelopes to people from whom they seek to obtain information. When the Human Rights Commissioner sent sealed letters to some people detained by the Department of Immigration and Multicultural Affairs, the Department refused to deliver them.

2.142 The Commissioner successfully challenged this refusal by the Department in the Federal Court (the `Teal' case). [31] This bill was introduced as a response to that Federal Court decision.

2.143 There were several related issues of concern to the Committee. These involved an apparent assumption that the Migration Act was “somehow more important than the other Acts”; an observation that the provisions of the bill were “clearly designed to make it as difficult as possible for the people subject to these laws to find out what rights they have in law”; and querying whether the bill contravened Article 26 of the International Covenant on Civil and Political Rights (ICCPR) by discriminating against unlawful non-citizens in precluding them enjoying a lawful means of obtaining access to legal advice.

2.144 The Minister responded that the bill sought to “make absolutely clear that unauthorised arrivals have no right of access to legal advice unless they specifically request” it. [32] Therefore, it was not a question of a `hierarchy of Acts', but rather of making this position clear. Based on the best available legal advice, taken with Australia's long-standing practices in this area, the Department was satisfied that the bill did not breach Australia's international obligations under the ICCPR.

2.145 In conclusion, the Committee reaffirmed its view that “the bill will take away rights under the Human Rights and Equal Opportunity Commission Act 1986 and the Ombudsman Act 1976 which presently exist and which presently provide the only means, not controlled by immigration authorities, of giving advice to unauthorised arrivals of other rights that they may have under this country's laws”. In the Committee's view it was contrary both to international standards (as expressed in Article 26 of the ICCPR) and to the fundamental values of the common law to entrench a discriminatory rule which would effectively preclude a person from finding out what rights he and she may have under the law.

2.146 The Committee continued to draw the Senate's attention to these provisions of the bill. In the event, the bill was not passed during the 38th Parliament.

Denial of natural justice

2.147 The Committee will examine provisions which deny people natural justice. For example, in its consideration of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997, the Committee drew attention to:

• proposed subsection 501(3), which authorised the Minister, acting personally, to cancel a visa or refuse a visa application without affording the visa holder or applicant natural justice; and
• proposed subsection 501A(3), which authorised the Minister, acting personally, to substitute a cancellation or refusal decision for a favourable one, again without affording the person concerned natural justice.

2.148 The Minister responded that the power to act without affording natural justice would be used only where it was in Australia's national interest to do so:

A Minister will only intervene in such character cases in those rare emergency situations where he or she believes that the national interest demands a prompt response involving the immediate detention of the non-citizen involved. An example of such a situation would be a suspected terrorist who has entered Australia as a tourist for the Sydney Olympic Games. Where the Minister uses these special powers, the freedom to act without natural justice is carefully circumscribed by the requirement that the relevant powers may only be exercised by the Minister personally (that is, the power cannot be delegated), the decision must be made in the national interest, and that the outcome of all such cases must be reported to both Houses of Parliament.

In addition, the Bill includes important procedural safeguards that ensure that where the minister makes a decision without prior natural justice, the spirit of natural justice is preserved by giving the person the right to make subsequent representations to the Minister that the decision should be revoked. This procedure was modelled on an existing provision for emergency visa cancellations that were included in section 128 of the Migration Act in 1994. [33]

Removing Parliament's right to obtain information from the Executive

2.149 During the 38th Parliament, the Committee again examined legislation which proposed to re-constitute the office of, and redefine the powers of, the Auditor-General. Clause 37 of the Auditor-General Bill 1996 prohibited the Auditor-General from including particular information in a public report where the Attorney-General had issued a certificate stating that disclosure of the information would be contrary to the public interest on one or more of various grounds. These grounds included prejudice to the security, defence or international relations of the Commonwealth; disclosure of Cabinet deliberations or decisions; prejudice to relations between the Commonwealth and a State; divulging information communicated in confidence by the Commonwealth to a State or by a State to the Commonwealth; unfair prejudice to another's commercial interests; and any other reason that might form the basis for a legal claim by the Commonwealth for non-disclosure.

2.150 Under subclause 37(3), where the Auditor-General was prohibited from including information in a public report, he or she could not be required, and was not permitted, to disclose that information to either House of the Parliament, or to a member or committee of either House of the Parliament. Under subclause 37(4), where the Attorney-General has issued a certificate and, as a consequence, information has been omitted from a public report, the report must note the omission and the reasons for the issue of the certificate. Under subclause 37(5), a report including the omitted information may be prepared and must be given to the Prime Minister, the Finance Minister and any responsible Minister.

2.151 The Committee had previously dealt with this matter in its Seventh, Eighth, Ninth, Tenth, Twelfth and Fourteenth Reports of 1995, and noted that clause 37 of the present bill would again have the effect of limiting the powers of Parliament. The Committee noted that the Auditor-General was described in subclause 8(1) of the bill as an independent officer of the Parliament. Subclause 37(3), therefore, denied to the legislature, or any of its committees, the opportunity of satisfying itself that its agent was properly carrying out his or her functions, and refusing to reveal only those matters referred to in subclause 37(2).

2.152 The Committee sought the advice of the Minister on two issues:

• whether subclause 37(4) ought not also require the Auditor-General to publish reasons where he or she decides to exclude sensitive information from a public report; and
• why Parliament and its committees might not be entrusted with access (suitably safeguarded) to the same sensitive information that would be made available to members of the Executive.

2.153 On the first issue, the Minister stated that the Auditor-General regularly decided to exclude sensitive information such as commercial-in-confidence matters from reports. To require the Auditor-General to state that material had been excluded would represent a departure from long-standing practice. Highlighting the omission of material, particularly where it had no real bearing on the report, might ultimately divert attention away from the report's recommendations and effectiveness. The Committee accepted this explanation.

2.154 On the issue of Parliament's access to sensitive information, the Minister advised that “notwithstanding `suitable safeguards', such an approach would have the real potential to result in the very sort of inappropriate disclosures that the provisions of clause 37 are designed to prevent”. The Minister further noted that subclause 37(5) restricted the provision of sensitive information to three specified members of the Executive – the information was not made available to the wider Executive at large.

2.155 On the issue of the accountability of the Auditor-General to Parliament, the Minister observed that focusing on subclause 8(1), which describes the Auditor-General as an independent officer of the Parliament, provides a “selective view” of the provisions covering his or her independence. It ignored subclause 8(3) which limits the powers of the Parliament to act in relation to the Auditor-General to those specified in law. The Minister concluded that, “importantly, there are no implied powers arising from the Auditor-General being an independent officer of the Parliament”.

2.156 On these latter two issues, the Committee responded that its suggestion of the Parliament having access to sensitive material subject to suitable safeguards was an attempt at compromise:

The absolute nature of the prohibition on disclosure might also be appropriately lessened by allowing disclosure where the reasons outlined in subclause 37(2) no longer apply: for example, decisions of Cabinet or information passed between the Commonwealth and the States sensitive at one time are, at a later time, often the subject of announcements by the Prime Minister.

The committee, however, raised these matters in the light of the extremely serious consequence of this clause: by passing this clause unamended, Parliament will seriously erode the powers and privileges granted it under the Constitution. The committee remains of the view that for Parliament not to have access to some of the information which might be excluded by the clause impinges on the rights of Australians to have the administration of the country by the executive properly scrutinised by the Parliament. [34]

2.157 Subsequently, a number of amendments to clause 37 were moved by the Greens (WA) and the Australian Democrats, but were negatived in the Senate. [35] However, an amendment prohibiting the Attorney-General from issuing a certificate in respect of information requested of the Auditor-General by a House of the Parliament or a parliamentary committee was agreed to. [36] This amendment was not agreed to by the House of Representatives, [37] and, ultimately, was not insisted upon by the Senate. [38]

Data-matching and the use of tax file numbers

2.158 In recent years, the Committee has commented on the growing use of tax file numbers and the increasing resort to the data-matching program. Under this program, data held by a range of Commonwealth agencies is identified with the aid of tax file numbers and compared.

2.159 For example, in its Ninth Report of 1996, the Committee considered the Family (Tax Initiative) Bill 1996. Two new sections proposed by this bill permitted the Secretary of the Department of Social Security to require claimants for, or recipients of, family tax payments to provide the Department with their tax file numbers and those of their partners.

2.160 The Committee marked its concern with the growing use of tax file numbers as identifiers in relation to matters unconnected with taxation. Such measures could be seen as trespassing on an individual's privacy. The Committee noted that it had been prepared to accept measures which allowed for the use of a tax file number where this was necessary for the prevention of fraud. As the family tax payment was closely connected with the family tax assistance program under the taxation system, in this instance the Committee accepted that requiring people to provide their tax file numbers was necessary to reduce the risk of fraud.

2.161 In its Seventeenth Report of 1997, the Committee considered various provisions of the Social Security Legislation Amendment (Parenting and Other Measures) Bill 1997, and in its Nineteenth Report of 1997 considered various provisions of the Social Security Legislation Amendment (Youth Allowance) Bill 1997. Each bill proposed to insert new sections in the Social Security Act 1991 to provide that the parenting payment and youth allowance would not be payable where applicants had not provided their tax file number or (if relevant) that of their partner.

2.162 Again, the Committee recognised that these clauses had been included to prevent overpayments and reduce the risk of fraud against the Commonwealth, but it noted the increasing use of tax file numbers as a means of identification and as an aid to income testing rather than as a tool in the carrying out of the tax laws.

2.163 The Minister responded that:

• the use of tax file numbers actually decreased the chance that a person would be identified during the data-matching process, as they enabled ATO income details to be compared only for social security customers rather than all taxpayers; and
• requests to provide tax file numbers as a condition of payment of parenting payment or youth allowance “are consistent with the requirements that apply to existing payments administered by Centrelink on behalf of the Department of Social Security”.

Example: Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996

2.164 In its Fourth Report of 1996, the Committee considered the provisions of the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996. Under the Data-Matching Act, the Australian Taxation Office (ATO) was authorised to provide specified “available and current” data to the Data Matching Agency. While an entitlement to most forms of social security and education assistance depends on the receipt of current income, some forms of assistance, including family payments and Austudy and Abstudy, are paid on the basis of income received in a previous tax year (known as the base year). In relation to these forms of assistance, the Data Matching Agency had been comparing data from relevant financial years rather than the current year. One of the specific aims of this bill was to put beyond doubt the lawfulness of this practice.

2.165 The Committee was concerned that unlawful use may have been made of the earlier data, and that the effect of this amendment was to change the law to give wider powers than those that then existed.

2.166 The Minister responded by drawing attention to the need to match relevant data. Matching in relation to family payment had produced over half the total savings from the data-matching program in 1994-95. He continued:

Given the intention of the Data-matching Act and the need for data used by the Data Matching Agency to be relevant, it was understood by source agencies and the Privacy Commissioner that the Data-matching Act authorised the use of the tax data relevant to the payment of family payment, Austudy and Abstudy even if that tax data was not in respect of the most recently completed tax year. Matching has been conducted on that basis, and rather than seeking to widen the scope of the present matching, the amendment seeks to correct an element of drafting that casts doubt on the legitimacy of the matching that does take place, although that matching is clearly consistent with the intent of the legislation. [39]

2.167 The Committee drew attention to the words of the Minister that the intention of the data-matching legislation was “to provide authority for strictly prescribed matching of data from specified agencies”. It seemed clear, both from the Minister's letter and the accompanying legal advice provided by the Department, that the Government had exceeded its authority by using data outside that which was strictly prescribed. While the reasons for expanding the data which could be matched were unexceptionable in this instance, the Committee was mindful of the climate in which the legislation was first passed, with assurances that the program would be strictly controlled, and the limits laid down by Parliament would be faithfully adhered to.

2.168 The Committee expressed its concern that the Minister, in relying on the `intention' of the legislation to justify the conduct of the program, was “confusing the intention of the Department and perhaps of the Minister in having the legislation passed with the intention of Parliament in passing the legislation”. The Committee concluded that no Scrutiny Committee could be expected to accept that legislation should mean what the Minister or the Department wanted it to mean rather than what the Parliament had actually passed. Therefore, it continued to draw the Senate's attention to the provisions.

The voting rights of prisoners

2.169 In Alert Digest No 7 of 1998, the Committee dealt with the Electoral and Referendum Amendment Bill (No 2) 1998. Item 10 of Schedule 1 to this Bill proposed to restrict the voting rights of prisoners. Under section 93(8)(b) of the Commonwealth Electoral Act 1918 prisoners serving a sentence of imprisonment of 5 years or longer are not entitled to enrol or vote at a federal election. The amendment proposed to extend this restriction to all prisoners, based on a recommendation of the Joint Standing Committee on Electoral Matters.

2.170 In its report on The 1996 Federal Election, that Committee stated that those “who disregard the Commonwealth or State laws to a degree sufficient to warrant imprisonment should not expect to retain the franchise”. However, one Minority Report argued that the current provision represented “a reasonable balance between conflicting concepts” and suggested that the new provision “would be even harsher than those provided in 1902”. Another Minority Report stated that this issue should be addressed when the legislation was being debated.

Consideration of the issue in 1994 and before

2.171 The voting rights of prisoners have been subject to considerable debate in recent years. Prior to 1983, the Act denied the franchise to all those serving sentences for offences having a maximum penalty of imprisonment for 1 year or more. On the passage of the Commonwealth Electoral Legislation Amendment Act 1983, the franchise was extended so that prisoners were denied a vote only where they were convicted of an offence having a maximum penalty of 5 years imprisonment.

2.172 In a submission to the Joint Standing Committee on Electoral Matters, the Australian Electoral Commission (AEC) pointed out that this provision had led to difficulties both in practice and in principle. In practice, it was difficult to establish, with certainty, every case in which the maximum penalty was imprisonment for 5 years or more. And in principle, such a provision was potentially inequitable – “a person serving an actual sentence of one month could be excluded from enrolment, while a person on a sentence of 59 months could be eligible, depending on the potential maximum sentence in each case”.

2.173 Therefore, the AEC submitted that a person should be denied a vote only where they were actually serving a sentence of 5 years or more. This approach was ultimately included in the Act (see item 5 of Schedule 1 to the Electoral and Referendum Amendment Act 1995), and is currently the law.

2.174 However, the approach advocated by a majority of the Joint Standing Committee in 1994 went further than the AEC's proposal. In its Report on The 1993 Federal Election, the Committee noted that it had previously recommended that enrolment and voting rights be granted to all prisoners, regardless of their sentence (unless convicted of treason or treachery):

an offender once punished under the law should not incur the additional penalty of loss of the franchise. We also note that a principal aim of the modern criminal law is to rehabilitate offenders and orient them positively toward the society they will re-enter on their release. We consider that this process is assisted by a policy of encouraging offenders to observe their civil and political obligations.

2.175 In a dissenting report, then Opposition members stated:

As our coalition colleagues on the committee in the 34th Parliament said when this proposal was last mooted, the concept of imprisonment – apart from any rehabilitation aspects – is one of deterrence, seeking by the denial of a wide range of freedoms to provide a disincentive to crime. A person having committed an offence against society is denied the privileges and freedoms of society of which one important one is the right to vote. The Committee's recommendation is therefore driven by a philosophical position with which we strongly disagree.

Committee consideration

2.176 The Committee noted the ongoing debate and drew the attention of Senators to the various views that had informed it. The Committee also noted that it was possible that people might be imprisoned – perhaps on weekend detention – for relatively minor offences such as failing to provide information or traffic infringements or conscientiously objecting to certain matters. As a consequence, under the amendments proposed in the Bill, such people might be denied a vote.

2.177 While conscious of the continuing debate on philosophical grounds, the Committee nevertheless sought the Minister's advice as to whether consequences such as these were inadvertent or intended. In response, the Special Minister of State advised that:

It should be noted that, as is currently the case, persons detained on remand or otherwise, or who are held at Her Majesty's pleasure, are not considered to be sentenced to imprisonment and, as such, the new provisions would not apply to them.

In regard to persons sentenced to short term imprisonment, where the AEC receives timely notice that a person has been sentenced to a term of imprisonment, appropriate action will be taken to remove that person's name from the roll. However, while the AEC will be seeking to receive early notification from the Controller of Prisons in each State and Territory, where the AEC receives notice that a person has been sentenced to a term of imprisonment, but that term of imprisonment has expired, the AEC does not propose taking retrospective action. It should also be noted that there are inconsistencies in the notification procedures between the various States and Territories.

Further, included in the amendments of the Bill are the repeal of facilities for mobile polling in prisons and the right to a postal vote due to imprisonment. Accordingly, there will be no facility for voting by persons in prison.

The AEC sought details of the practical application of a similar provision in the Tasmanian State electoral legislation. The Tasmanian Constitution Act 1934 provides that “no person under any conviction … is entitled to vote in any election…”. The Tasmanian Electoral Act 1985 provides that the Controller of Prisons shall forward to the Chief Electoral Officer each month for appropriate action, a list of all persons sentenced to a term of imprisonment of 12 months or more.

Advice received is that, in a practical sense, it would be extremely difficult for a Tasmanian prisoner to vote in a State election. No provision is made for mobile polling facilities in prisons and prisoners do not qualify for a postal vote as there is a polling place within 8kms of the jail. The proposed amendments of the Bill would have a similar effect.

The AEC also sought advice on the application of prisoner voting provisions in Britain. The advice received was that convicted prisoners in the UK are legally prevented from voting while detained in penal institutions in pursuance of their sentences. However, convicted but unsentenced and remand prisoners may vote. Sentenced prisoners temporarily absent from prison, for example, while on `home leave' are still ineligible to vote. There is no equivalent of weekend detention in Britain. [40]

2.178 The Committee thanked the Special Minister for this advice. The Committee observed that, under the Bill, a range of voters might be dealt with differently depending on the nature of their sentences and on the effectiveness of notification procedures in the various States and Territories. Accordingly, the Committee continued to note the effect this provision might have on personal rights and liberties.

2.179 Ultimately, the Bill lapsed with the prorogation of the 38th Parliament.

Footnotes

[1] Hobbes T, Leviathan, as referred to by Toohey J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 687.

[2] Blackstone, W, Commentaries on the Laws of England, Book 1 (1765, Clarendon Press, Oxford), pp 45-6 as referred to in Polyukhovich (1991) 172 CLR 501 at 534 per Mason CJ.

[3] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, pp 113-4.

[4] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, p 12.

[5] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, pp 15-16.

[6] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, pp 16-17.

[7] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 11.

[8] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 5.

[9] See Senate Legal and Constitutional Legislation Committee, Consideration of legislation referred to the Committee: Migration Legislation Amendment Bill (No 2) 1996 (June 1996), pp 1-4.

[10] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, p 118.

[11] Scrutiny of Bills Committee, The Work of the Committee during the 37th Parliament, p 21.

[12] Scrutiny of Bills Committee, Annual Report 1986-87, pp 12-13.

[13] Journals of the Senate, 8 November 1988, pp 1104-5.

[14] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 163.

[15] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 14.

[16] Senate, Hansard, 23 March 1998.

[17] Scrutiny of Bills Committee, First to Nineteenth Reports of 1995 pp 94-95.

[18] For example, Agricultural and Veterinary Chemicals Code 1994, s 146; Child Support Assessment Act 1989, s 161(4); Australian Wine and Brandy Corporation Act 1980, s 39ZH(3); Ozone Protection Act 1989, s 64(2).

[19] Senate, Hansard, 17 June 1997, p 4302.

[20] Parliamentary Paper No 319/1982, p 47.

[21] Scrutiny of Bills Committee, First to Twentieth Reports of 1992, p 603.

[22] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 153.

[23] Scrutiny of Bills Committee, Alert Digest No 9 of 1997, p 13.

[24] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, pp 73-4.

[25] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 267.

[26] Senate, Hansard, 24 September 1997, pp 6820-6825.

[27] See, generally, Scrutiny of Bills Committee, Second Report of 1998, pp 32-35 and Third Report of 1998, pp 50-53.

[28] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 35.

[29] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 53.

[30] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, pp 6-7.

[31] Human Rights and Equal Opportunity Commission v Secretary of the Department of Immigration and Multicultural Affairs (unreported, 7 June 1996, Lindgren J, NG 268 of 1996).

[32] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, p 93.

[33] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, pp 79-80.

[34] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 52.

[35] Senate, Hansard, 29 September 1997, pp 7108-7120.

[36] Senate, Hansard, 29 September 1997, p 7122.

[37] Senate, Hansard, 2 October 1997, p 7453.

[38] Senate, Hansard, 2 October 1997, pp 7467-7468.

[39] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, p 50.

[40] Scrutiny of Bills Committee, First to Eleventh Reports for 1998, pp 164-5.