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 may 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; or

• abrogate legal professional privilege.

2.2       Standing Order 24(1)(a)(i) may also apply in other circumstances, for example, where legislation directly affects fundamental entitlements such as the right to vote. Examples of the range of issues that the Committee considers under this principle are detailed below.

 

Retrospectivity

2.3       Legislation has retrospective effect when it makes a law applicable to an act or omission that 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 that seek to have an impact on a matter that 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 the publication took place prior to the date of application.[3]

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. These reasons should include a statement of whether any person will be adversely affected by the retrospective provisions and, if so, the number of people involved and the extent to which their interests are likely to be affected.

2.7       In its Tenth Report of 2005, the Committee made a specific statement reiterating its position with regard to retrospective legislation, particularly legislation that seeks to impose criminal liability retrospectively. This was in response to evidence given to the then Senate Employment, Workplace Relations and Education Legislation Committee inquiry into the Building and Construction Industry Improvement Bill 2005. The Committee’s comments on that bill, along with other examples of the Committee’s approach to this issue during the 41^st Parliament, are set out below.

Example: Building and Construction Industry Improvement Bill 2005

2.8       In Alert Digest No. 3 of 2005, the Committee noted that clauses 4 to 10 of this bill, along with Chapter 6, were to commence retrospectively, on 9 March 2005. The explanatory memorandum confirmed that this retrospectivity would operate to the detriment of people, stating that:

The retrospective character of this Bill will ensure that unions that take unlawful industrial action prior to the nominal expiry date of...existing agreements in the coming months, will be subject to the sanctions and greater penalties provided by [this bill].

2.9       The memorandum went on to note that Chapter 6 of the bill, which set out rules relating to industrial action for the building and construction industry, would render certain kinds of industrial action unlawful and modify what may be protected action for the purposes of the Workplace Relations Act 1996.

2.10         The Committee also noted that the date proposed for the retrospective commencement of these provisions was the date of the introduction of the bill into the House. The Committee reiterated its long held view that, in principle, legislation which changes the nature of people’s rights should commence after it is finally passed by the Parliament, rather than on the date of its introduction. The approach taken in this bill raised the same concerns as provisions which make legislation operative from the date of a press release. Such an approach carries with it the assumption that citizens should arrange their affairs in accordance with announcements made by the Executive rather than in accordance with laws passed by the Parliament. The uncertainty this creates is compounded by the possibility that the Parliament may – quite properly – pass the legislation in an amended form.

2.11         The Committee concluded that the bill was retrospective in operation and that this retrospectivity clearly operated to the detriment of people, potentially rendering as unlawful, industrial action that was at the time lawful, and subjecting those who took part in such action to the sanctions and greater penalties in the bill. As such, the Committee considered that the bill could be regarded as trespassing on personal rights and liberties, but left for the Senate as a whole the question of whether it unduly trespassed on those rights.

2.12         In Alert Digest No. 10 of 2005, the Committee noted a number of amendments that were made to the bill in the House of Representatives. A number of these amendments provided for clauses 4 to 8, 36, 37, 38, 41 and 42 of the bill to commence retrospectively, on 9 March 2005. The Committee noted that clauses 4 to 8, 36 and 37 provided definitions of various terms used in the other clauses, while clauses 38 and 41 forbad certain industrial action in the building industry, and imposed a civil penalty for infraction of the terms of those clauses. The amount of the civil penalty was set at $22,000 for an individual and $110,000 for a body corporate.

2.13         The Committee noted that the effect of this retrospective commencement was to render a person potentially liable to a substantial pecuniary penalty for engaging in conduct which (if carried out at any time after 9 March 2005 but before the bill passed the Parliament and was assented to) was perfectly legal at the time that it was engaged in.  The Committee reiterated the same concerns as those expressed about this bill in Alert Digest No. 3 of 2005 and concluded that the retrospective measures in the bill may be regarded as trespassing on personal rights and liberties, but left to the Senate as a whole the question of whether the bill trespassed on those rights unduly.    

2.14         The Committee also noted that paragraph 78(3)(a) of the bill permitted regulations made under subclause 5(3) to be expressed to take effect from 9 March 2005. Subclause 5(3) permitted the definition of building work to include ‘any activity that is prescribed by the regulations’. Clause 36, which provides definitions for the purposes of clauses 38 and 41, included the phrase ‘building work’. The Committee concluded that it

is therefore possible that a regulation, expressed to take effect from 9 March 2005, may render a person or body liable to a civil penalty for conduct which was not only completely lawful at the time that it was engaged in, but which also had not been described in any bill put before the Parliament as being potentially subject to a civil penalty.[4]

2.15         The Committee noted that this measure was retrospective in operation and could be regarded as trespassing on personal rights and liberties. Once again, the Committee left it for the Senate as a whole to decide whether the measure unduly trespassed on personal rights and liberties.

2.16         These issues were the subject of significant debate when the bill was considered by the Senate in September 2005. In its Tenth Report of 2005, the Committee noted the view expressed by the then Special Minister of State, Senator Abetz, in taking the bill through the Senate:

All around the chamber there seems to be agreement that retrospectivity in principle is not a good thing but we would all use it if we believed the circumstances justified it. I suppose that is the big divide in this debate: we in fact believe that the circumstances in the building industry do require retrospectivity on this occasion, albeit we would not make a habit of doing this and we in fact do not like doing it.[5]

2.17         The Committee also noted that the Minister sought to justify the use of retrospectivity in the circumstances:

The decision to designate 9 March as the date of effect was taken to ensure that industry parties did not take advantage of the time between the bill’s introduction and its passage to engage in unlawful or antisocial conduct of  the sort identified by the Cole Royal Commission. As a consequence, persons taking unprotected action from the date of the bill’s introduction would run the risk that it will be unlawful and attract significant penalties...

I think we are all agreed that retrospectivity should be used sparingly. We as a government believe that this is one of those rare occasions when retrospectivity is justified. I can understand that, on balance, others would come to a different conclusion.[6]

2.18         The Committee advised that it would continue to comment adversely on legislation which may operate retrospectively to the detriment of people’s rights, but that the Committee nonetheless appreciated the Minister spelling out the Government’s position on retrospectivity, and his agreement that ‘it should be used sparingly’.[7]

2.19         While debating this bill, the Senate considered a number of amendments, moved by Senator Murray, which would have removed the retrospectivity about which the Committee had expressed concern. These were not successful and the bill was passed without amendment.

Example: Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 2004

2.20         In Alert Digest No. 11 of 2004, the Committee commented on proposed new sections 22C and 44B of the Classifications (Publications, Films and Computer Games) Act 1995, to be inserted by this bill. These provisions would retrospectively validate decisions of the Classification Board and the Classification Review Board that were based on applications made by or on behalf of law enforcement agencies, even though the application did not satisfy the requirements of the Act.

2.21         The Committee noted from the explanatory memorandum that the purpose of the bill was ‘to ensure that prosecutions for child pornography and related offences do not fail for technical reasons related to applications for classifications.’[8] However, the Committee considered that the wording of proposed new sections 22C and 44B went further than this and ‘would validate a decision, whatever the reason – whether technical or substantive – for the application not satisfying the requirements of the Act.’[9] The Committee sought the Attorney-General’s advice as to whether the bill needed to be amended to ensure that it operated only to validate minor or technical deficiencies. 

2.22         The Committee also noted that neither the explanatory memorandum nor the second reading speech provided any indication of the extent of any deficiencies in applications that had been discovered, with the Attorney-General merely stating, in his second reading speech, that ‘this retrospectivity is appropriate and justified and will not lead to any substantive injustice’.[10] The Committee sought the Attorney-General’s advice as to what injustice the Attorney-General considered may result from the provisions and whether the retrospectivity might be regarded as trespassing unduly on the rights of persons who might be charged with offences under the legislation.

2.23         The Attorney-General responded, indicating that he did not believe that there was any need to amend the bill as it would only operate to ‘validate decisions made following applications that had minor or technical deficiencies’[11]:  

The application requirements are minor and technical. For example, section 22A of the Classification (Publications, Films and Computer Games) Act 1995 requires that the application be:

• in writing; and

• made in a form approved by the Director in writing; and

• signed by or on behalf of the applicant; and

• accompanied by a copy of the publication, film or computer game.

For section 14 and 17 applications there are additional requirements, including the provision of an adequate written synopsis of the film or other information about the computer game. Also, in some instances, any “contentious material” needs to be identified and information provided as to the means by which access to that material may be gained.

In practice, a copy of the publication, film or computer game as required by subsection 22A(1) must have been provided for classification to occur.

If any of these application requirements are overlooked then, provided that the Board has classified the material properly according to the criteria in the Classification Act, National Classification Code and the classification guidelines, the Board’s decision should be valid - despite a minor deficiency in the application which has no bearing on the classification decision.[12]

2.24         The Attorney-General also emphasised that advice had been received from the Commonwealth’s Chief General Counsel:

that the Bill only validates decisions that might otherwise be invalid because the application did not satisfy the requirements of the Act for the making of applications. In these circumstances the decision is taken to be as valid as it would have been if the application satisfied those requirements.

Such errors in the application cast no doubt whatsoever on the correctness of the classification decision, which rests on the examination of the relevant product not the formalities of the application. The provision would catch, for example, applications referring to the wrong section of the Act.[13]

2.25         In relation to the Committee’s comment regarding the lack of information provided on the extent of any deficiencies in applications that had been discovered, the Attorney-General advised that no information was provided in the explanatory memorandum or second reading speech about the types of deficiencies discovered as:

I am concerned that should the detail of the deficiencies become public, such information may provide unnecessary encouragement or assistance to legal challenges to prosecutions and convictions.’[14]

2.26         In respect of the Committee’s query about what injustice the
Attorney-General considered may result from the provisions, the Attorney-General advised that:

I do not believe that there will be any injustice, substantive or otherwise, to persons who might be charged.

The Bill does not operate unjustly. In every case it remains the responsibility of the prosecution to prove beyond reasonable doubt that the defendant is guilty of an offence. The classification that the Board has given to material submitted by police informs the court about the nature of that material... If there is any doubt about whether the material classified is the same as the material that was seized, this is a matter for the prosecution to prove beyond reasonable doubt in Court...

The amendments do not deprive a person who was in possession of alleged child pornography material of any existing rights to seek review of or appeal against the classification of the material determined by the Classification Board or Review Board.

Given the fact that the classification decisions themselves are sound, there is no injustice to the persons charged and no legitimate reason why a person should be able to escape prosecution, conviction and punishment for such offences.[15]

2.27         The Committee thanked the Attorney-General for this response, which addressed the Committee’s concerns, and noted the Attorney-General’s advice that the bill only validated decisions where the application was arguably made under the wrong section, or where some of the required information was not included in the application. The Committee also thanked the Attorney-General for the explanation provided of the practical operation of the classification provisions in relation to criminal proceedings and for his assurance that the bill did not operate unjustly.[16]

Example: Medical Indemnity Legislation Amendment Bill 2005

2.28         In Alert Digest No. 2 of 2005, the Committee noted that a number of items in Schedule 1 of this bill were to commence retrospectively on 1 July 2004, immediately after the commencement of Schedule 1 to the Medical Indemnity Legislation Amendment (Run-off Cover Indemnity and Other Measures) Act 2004. The Committee noted that the explanatory memorandum to the bill provided no indication of whether this proposed retrospectivity was beneficial or prejudicial to those to whom the legislation was to apply although, in respect of one of the proposed amendments, the explanatory memorandum noted that it was ‘not intended that the amendments have a retrospective impact on criminal sanctions within the Medical Indemnity Act 2002’.[17] The Committee sought the Minister’s advice regarding this retrospectivity.

2.29         The Minister for Health and Ageing responded that the purpose of the bill was to:

refine aspects of a number of medical indemnity programs so as to improve their various operations in ways which are beneficial to medical indemnity providers and/or doctors. In some circumstances it was considered prudent to have these beneficial amendments apply retrospectively to the start of a particular scheme. 

I am conscious of the general proposition that where provisions are retrospective in their application they should not result in a detriment to those they affect.  Officers of my Department have worked closely with the relevant areas of the Attorney-General’s Department to ensure that this is the result for those provisions which have a retrospective commencement date in this bill.[18]

2.30         The Committee thanked the Minister for this response and for the assurance that the amendments that were to operate retrospectively were beneficial to medical indemnity providers and/or doctors.

Example: New International Tax Arrangements (Foreign-owned Branches and Other Measures) Bill 2005

2.31         In Alert Digest No. 4 of 2005, the Committee commented on provisions in this bill that would apply to ‘things happening on or after 1 July 2004.’ The Committee noted from the explanatory memorandum that the amendments were intended to correct a deficiency in the law relating to ‘adjusted distributable profits’ when a controlled foreign company changed residence from an unlisted country to a listed country or to Australia. The explanatory memorandum did not, however, provide advice on whether the amendments would have any financial impact. The Committee sought the Minister’s assurance that no one would be disadvantaged by the retrospective application of these provisions.

2.32         The Minister for Revenue and Assistant Treasurer responded that the amendments referred to, although applying retrospectively, ‘correct an unintended consequence and, as a result, have no financial impact nor do they disadvantage taxpayers.’[19] The Committee thanked the Minister for this assurance but
re-emphasised that, where there is a proposal for legislation to have retrospective effect, the explanatory memorandum should set out in detail the reasons why retrospectivity is sought and whether it will adversely affect any person. The Committee noted that the inclusion of such information in the explanatory memorandum ‘alleviates the need for correspondence on such matters.’

‘Legislation by press release’ and the six month rule

2.33         ‘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.

2.34         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 the Parliament can do that’.[20]

2.35         As a general principle, the Committee disapproves of ‘legislation by press release’ for two reasons. Firstly, 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.[21]

2.36         The Committee has noticed that, since it made these comments, the use of ‘legislation by press release’ in most portfolio areas seems to have declined, although it does still occur. Tax legislation, in particular, is still frequently applied retrospectively, with amendments made to apply from the date of their announcement, whether by press release or in the Budget. In 1988, the Senate passed a declaratory resolution to the effect that if more than six months elapse between a government announcement of a taxation proposal and the introduction or publication of a bill, the Senate will amend the bill to reduce the period of retrospectivity to the time since the introduction or publication of the bill.[22] 

2.37         An example of the Committee’s approach to ‘legislation by press release’ during the 41^st Parliament is set out below.

Example: Tax Laws Amendment (2006 Measures No. 7) Bill 2006

2.38         In Alert Digest No. 1 of 2007, the Committee commented on item 5 of Schedule 7 of this bill, which provided that the amendments proposed in Schedule 7 would apply retrospectively ‘to arrangements, or extensions of arrangements, entered into at or after 9.30am by legal time in the Australian Capital Territory on 16 April 2003.’ The Committee noted from the explanatory memorandum that the purpose of the amendments was to overcome the effect of a decision of the Federal Court in Commissioner of Taxation v Firth, which allowed some borrowers to obtain an income tax deduction for what may have been, in substance, a capital cost. The amendments were to apply from the date and time of a press release made by the Treasurer in respect of this matter, even though the actual methodology used to overcome the effect of the Firth case was not promulgated until a later press release, issued by the Minister for Revenue on 30 May 2003.

2.39         The Committee concluded that this was a case of ‘legislation by press release’, which the Committee had been prepared to accept in the past, so long as the legislation was introduced within six months of the press release. In this case, the Committee noted that the legislation had not been introduced until approximately three and a half years after the press release. The Committee sought the Treasurer’s advice as to the reason for the delay in introducing these amendments.

2.40         The Minister for Revenue and Assistant Treasurer advised the Committee that the measures were introduced after extensive consultation with industry between 2003 and 2006. The Minister asserted that the measures were acceptable as:

Although the Committee has characterised this delay as ‘an instance of legislation by press release’, it is important to note that the retrospective aspect of the CPB [Capital Protected Borrowings] measures is giving legislative effect to a pre-existing Australian Taxation Office (ATO) interpretation and administrative practice that applied prior to Firth’s case, rather than the implementation of a ‘new’ taxation treatment.

The ATO’s interpretation of the law as it applied to CPBs was rejected by the Federal Court of Australia in Firth’s case in November 2002. The ATO’s administrative practice following Firth’s case was consistent with the ‘interim apportionment methodology’ the details of which were provided in the former Minister for Revenue and Assistant Treasurer, the Hon Helen Coonan’s press release No. C046 of 30 May 2003.

The transitional provisions of the CPB measures ensure that the tax treatment of CPBs entered into on or after 16 April 2003 is consistent with that for CPBs entered into prior to Firth’s case. The ‘interim apportionment methodology’ has a 16 April 2003 start date as the amendment is an integrity measure directed at protecting the revenue base. A later start date would put the revenue at risk...

As this provision is effectively restoring a pre-existing taxation treatment for CPB investors it is not considered to adversely affect personal rights and liberties.[23]

2.41         The Committee thanked the Assistant Treasurer for this response, noting the reasons provided for the delay in implementing the changes announced by the Treasurer on 16 April 2003. However, the Committee questioned the Assistant Treasurer’s assertion that ‘as this provision is effectively restoring a pre-existing taxation treatment for CPB investors it is not considered to adversely affect personal rights and liberties’. The Committee considered that it was clear from the Assistant Treasurer’s letter that the proposed change would have adverse consequences for those taxpayers who had entered into capital protected borrowings as it would retrospectively impose greater tax liabilities on these investors.

2.42         The Committee sought further advice from the Assistant Treasurer as to why the Committee should not recommend that the Senate amend this aspect of the bill so that it applied from the date that the bill was introduced. The Committee noted that this would be consistent with the declaratory resolution of the Senate, of 8 November 1988, to the effect that if more than six months elapses between a government announcement of a taxation proposal and the introduction or publication of a bill, the Senate will amend the bill to reduce the period of retrospectivity to the time since the introduction or publication of the bill.[24] 

2.43         The Minister for Revenue and Assistant Treasurer responded that the Government generally supports prospective application of tax legislation, however, the CPB amendment was ‘an integrity measure directed at protecting the revenue base.’ In addition, the ‘interim approach’, announced by the Minister for Revenue and Assistant Treasurer on 30 May 2003, was aimed at providing certainty for taxpayers and the market as to the tax treatment of CPB arrangements, while extensive consultation occurred with industry on the final approach contained in this bill. As such, the Government considered it appropriate that the measure apply from the date of the Treasurer’s initial announcement.[25]

2.44         The Committee thanked the Assistant Treasurer for this further response, noting that, in the special circumstances of this case, retrospective commencement appeared to be unavoidable.[26]

Abrogation of the privilege against self-incrimination

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

2.46         At the same time, the Committee is conscious of the Government’s need to have sufficient information to enable it to properly carry out its duties to the community. Good administration in some circumstances might necessitate the obtaining of information that 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 that affects or removes a person’s right to silence usually do so on this basis.

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

2.48         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 that the person has been compelled to make.

Example: Trade Practices Legislation Amendment Bill (No. 1) 2005

2.49         In Alert Digest No. 10 of 2005, the Committee commented on proposed new subsection 154R(3) of the Trade Practices Act 1974, to be inserted by item 4 of Schedule 8 of this bill, which would abrogate the privilege against self-incrimination. When the Committee originally considered this bill, in Alert Digest No. 2 of 2005, the Committee had accepted that the provision struck a reasonable balance between the competing interests of obtaining information and protecting the rights of individuals. On further consideration, however, the Committee noted that subsection 154R(4) of the Trade Practices Act 1974 only appeared to protect from admissibility in criminal proceedings the information actually provided by the person (use immunity), not other information obtained as a direct or indirect consequence of the giving of the initial information (derivative use immunity). The Committee sought the Treasurer’s advice as to whether this was the case and, if so, the reason for failing to provide derivative use immunity.

2.50         The Parliamentary Secretary to the Treasurer responded, confirming that derivative use was not protected under proposed new subsection 154R(4) as it ‘would be likely to unreasonably hinder the investigation and prosecution of corporate offences and contraventions in the Trade Practices Act 1974.’[27] The Parliamentary Secretary further asserted that:

The degree of protection provided to individuals under this subsection is consistent with the degree of protection specified on page 87 of the document entitled A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers... As that document notes, after the consideration of a number of detailed reviews and research, the Government has accepted that protection for full use and derivative use immunity would unacceptably fetter the investigation and prosecution of corporate misconduct offences...’.[28]

2.51         The Committee thanked the Parliamentary Secretary for this response, accepting that it may be appropriate to limit such immunities in relation to the corporate regulation responsibilities of bodies such as the Australian Competition and Consumer Commission. The Committee reiterated, however, that it was preferable to include an explanation of relevant matters in the explanatory memorandum, to enable the Committee, and the Parliament, to determine whether the reduced immunity is appropriate in the circumstances. In this instance, the Committee indicated that the Parliamentary Secretary’s response met their concerns.[29]

Example: Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006

2.52         In Alert Digest No. 4 of 2006, the Committee commented on proposed new paragraph 40VE(3)(b) of the Australian Federal Police Act 1979, to be inserted by item 28 of Schedule 1 of this bill, which would abrogate the privilege against self-incrimination for an AFP appointee who was given a direction by an investigator, under subsection 40VE(1), to give information, produce a document, record or thing, answer a question, or do something else for the purposes of obtaining evidence. The Committee noted that subsection 40VE(4) of the bill provided that ‘the information, the production of the document, record or thing, the answer to the question or the evidence obtained by doing that thing, is not admissible in evidence against the AFP appointee in any civil or criminal proceedings.’ However, the Committee was unclear whether such protections were provided for information or evidence obtained as an indirect consequence of the abrogation of the privilege against self-incrimination (derivative use immunity). The Committee sought the Attorney-General’s advice as to whether subsection 40VE(4) provided derivative use immunity and, if not, why not. 

2.53         The Minister for Justice and Customs responded, acknowledging that the Australian Government’s criminal law policy provides that both use and derivative use immunity should normally apply where legislation abrogates the privilege against self-incrimination, but arguing that ‘this legislation is an exceptional case.’[30] The Minister advised that the reliability of Australian Federal Police (AFP) employees is critical to the effectiveness of law enforcement and, as such, it is essential that it is clear to employees who might be tempted to commit criminal offences that there is a high risk of a successful prosecution and that, where serious misconduct is identified, the responsible persons can be removed from the AFP. The Minister indicated that in ‘such cases admissions that are themselves inadmissible may be an indispensable step in identifying other evidence to establish the guilt of the person concerned.’

2.54         In light of these considerations, the Minister submitted that:

...the public interest in those charged with the investigation of misconduct within the AFP having full and effective investigatory powers, and in prosecuting authorities being able, in any subsequent court proceedings, to use against the person any incriminating material identified as a result of the evidence given to those investigators, outweighs the merits of affording full protection to self-incriminatory material...[31]

2.55         The Committee thanked the Minister for this response, noting that it would have been helpful if this explanation had been included in the explanatory memorandum.   

Reversal of the onus of proof

2.56         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 (ie. impose a legal burden on that person) or require that person to point to evidence that suggests a reasonable possibility that the matter exists or does not exist (ie. impose an evidential burden on the person). The Committee usually comments adversely on a bill that places the onus on an accused person to disprove one or more elements of the offence with which he or she is charged.

2.57         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.[32] 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 her [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.[33]

2.58         Reversal of the onus of proof may be applied to citizens in their individual capacity, or it may be applied to people in their official working capacity, for example, as a company director or CEO. The Australian Competition and Consumer Commission (ACCC) have argued that common law rights in relation to the onus of proof were developed to protect individuals and should not be automatically extended to protect companies:

I think it is simply a basic fact that the whole jurisprudence that underlines the whole legal system was developed in the context of the rights of individual persons. When we turn to corporations, it does not seem to me that one should automatically assume that this jurisprudence translates into absolutely equivalent and identical rights...[34] [35]

2.59         Nevertheless, the Committee has continued to bring provisions that reverse the onus of proof to the attention of the Senate, regardless of whether the reverse onus rests on people in their individual capacity or in their professional capacity. The Committee remains firmly of the view that reversing the onus of proof for persons in their individual capacity infringes well-established and fundamental personal legal rights, but the Committee notes the development over the last decade or more, of legal provisions that seek to get behind the ‘corporate veil’ by reversing the onus of proof for persons acting not as individuals but in an official organisational capacity, where the corporation might otherwise use the rights of the individual to protect the interests of the entity.

2.60         For example, during the 39^th Parliament, the Committee considered the Corporate Law Economic Reform Program Bill 1998, which reversed the onus of proof in a variety of circumstances, including making a misstatement in certain takeover and other offer documents; not proceeding with a publicly proposed bid; and making a misstatement in a prospectus or similar document.[36] The government argued that reversal of the onus of proof in these circumstances was appropriate as it was consistent with Corporations law more generally, was aimed at ensuring the integrity of the market, and sought to address the information imbalance between issuers of a prospectus and potential investors.[37] The Committee accepted the reversal of the onus of proof in these circumstances.

2.61         During the 41^st Parliament, the Committee commented on a number of bills that reversed the onus of proof. Some examples are set out below.

Example: Film Licensed Investment Company Bill 2005

2.62         In Alert Digest No. 5 of 2005, the Committee drew attention to clauses within this bill which the Committee believed would result in the reversal of the onus of proof for a stakeholder who failed to divest themselves of a stake in a film licensed investment company (FLIC) when directed to do so by the Minister. The Committee noted that:

• clause 27 of this bill would establish ownership conditions for FLIC shares;

• clause 40 of this bill would create an offence if a person or persons acquired shares in a company either knowing, or reckless as to whether, the acquisition would create or exacerbate an ‘unacceptable level of foreign ownership’ in relation to the FLIC;

• clause 41 would establish a separate offence relating to the failure to dispose of shares in accordance with a written direction from the Minister;

• sub-clause 41(1) would permit the Minister to give a stakeholder a written direction to cease holding a stake in a FLIC if the Minister has ‘reasonable grounds to believe’ that the stakeholder’s sole or dominant purpose was to avoid the restrictions on ownership levels stated in clause 27; and

• by virtue of subclause 41(3), the stakeholder’s failure to comply with such a direction would be a criminal offence.

2.63         The Committee’s reading of these clauses was that, in a prosecution for an offence under clause 41, the prosecution would have to prove beyond reasonable doubt that the accused had failed to divest himself or herself of the stake in the FLIC, however, the prosecution would not have to prove to any degree at all that the accused person’s sole or dominant purpose in entering into a scheme was to avoid the limitations stated in clause 27. The Committee noted that the only circumstance in which the accused person’s state of mind in entering into any scheme might be tested would be if he or she challenged the Minister’s decision to issue the divestiture order. Such a challenge could only be made under the Administrative Decisions (Judicial Review) Act 1977, in which case the onus would be on the stakeholder to prove that the Minister did not have reasonable grounds for issuing the divestiture order.

2.64         The Committee noted that it usually comments adversely on provisions which place the onus on an accused person to disprove one or more elements of an offence with which he or she is charged and that it appeared that the effect of clause 41 of this bill was to reverse the normal onus of proof in a criminal prosecution. The Committee sought the Minister’s advice as to whether the bill did, in fact, reverse the onus of proof and, if so, whether this reversal was justified in the circumstances.[38]

2.65         The Minister for the Arts and Sport responded that:

The offence created by clause 41 is contained in subclause 41(3). An offence is committed if a person has been given a direction by the Minister to cease holding his or her stake and the person engages in conduct and the conduct breaches the direction. The state of mind of the person or persons who entered into, or began to carry out or carried out the scheme, is not an element of the offence and there is no reversal of the onus of proof on the accused in relation to the offence...

The recipient of a notice who is aggrieved by the Minister’s decision could lodge an application under the Administrative Decisions (Judicial Review) Act 1977 for a review of the decision. A basis of the challenge could be that the Minister did not have reasonable grounds for believing that the person who entered into, or began to carry out or carried out the scheme, did so for the sole or dominant purpose of avoiding the restriction on ownership levels set out in clause 27. However, actions for review of an administrative decision are not criminal proceedings and the appellant is not ‘the accused’. The fact that the appellant would bear the onus of adducing evidence to support his or her case does not constitute a reversal of the onus of proof.[39]

2.66         The Committee thanked the Minister for this response. While accepting that there was not a technical reversal of the onus of proof in relation to the offence created in subclause 41(3), the Committee reiterated its concern that ‘the interaction of the provisions in subclauses 41(1) and 41(3) have an effect equivalent to reversing the onus.’[40]  The Committee argued that:

The circumstances of the offence are as follows:

• a person or persons enter into a scheme, the purpose of which is to circumvent the ownership restrictions in the bill;

• the stakeholder’s stake in the company thereby exceeds the ownership restrictions; and

• the stakeholder fails to reduce his, her or its stake in the company (within a reasonable time).

If these were the elements of an offence the prosecution would have to prove each of those elements: the stakeholder would not have to prove anything. Instead, the mechanism in clause 41(1) removes the first circumstance from the elements of the offence, creating in effect a presumption as to the purpose of the scheme. This presumption cannot be challenged by the stakeholder in criminal proceedings and, importantly, need not be proved by the prosecution...

It seems likely that the Minister’s determination of the purpose of a ‘scheme’ will include an assessment of the intention of persons entering into that scheme. The Committee is concerned that the determination of that intention is so divorced from the elements of the offence that it cannot be tested in criminal proceedings brought under clause 41(3). The lack of this fault element will make it easier for the prosecution to make its case and the Committee is concerned that this may not be appropriate.[41]

2.67         The Committee noted that the bill had already been passed by the Parliament ‘without comment on this issue’.  The Committee, nevertheless, continued to draw the provision, and the Minister’s explanation, to the attention of the Senate.[42]

Example: Offshore Petroleum Bill 2005

2.68         In Alert Digest No. 8 of 2005, the Committee commented on subclause 301(7) and clause 309 of this bill, which would reverse the onus of proof in a criminal proceeding, and require the defendant to prove, on the balance of probabilities, matters which would excuse criminal liability. The Committee noted that the explanatory memorandum, while outlining the effect of these provisions, did not seek to justify this departure from the general law. The Committee sought the Minister’s advice as to the reason for this reversal of the onus of proof.

2.69         The Parliamentary Secretary to the Minister for Industry, Tourism and Resources responded that:

The provisions in question are defences in a criminal prosecution. To avail himself or herself of the defence, the defendant would have to prove, on the balance of probabilities, matters which would excuse criminal liability...

As a general principle, where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution, it is legitimate to cast the matter as a defence. The defendants to whom subclause 307(1) and clause 309 applies have the knowledge that would establish what reasonable steps they took to carry out the corresponding duty or direction. The prosecution is still required to establish that the duty or direction has been breached.[43]

2.70         The Committee thanked the Parliamentary Secretary for this response, noting that the explanation provided ‘appears to bring the provisions within the exceptions the Committee has previously been prepared to accept’. In particular, the Committee noted the Parliamentary Secretary’s contention that ‘where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution, it is legitimate to cast the matter as a defence.’ The Committee indicated that, while it did not accept that this was necessarily sufficient to justify reversing the onus of proof in all circumstances, in this case the provisions enabled the defendant to raise a defence of reasonableness that might not otherwise be available. In the circumstances, the Committee made no further comment on these provisions.[44]

Strict and absolute liability offences

2.71         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. A person charged with a strict liability offence has recourse to a defence of mistake of fact.

2.72         An offence of absolute liability also provides for people to be punished for doing something, or failing to do something, whether or not they have a guilty intent. However, in the case of absolute liability offences, the defence of mistake of fact is unavailable.  

2.73         The Committee will draw the Senate’s attention to provisions that create offences of strict or absolute liability and has expressed the view that, where a bill creates such an offence, the reasons for its imposition should be set out in the explanatory memorandum that accompanies the bill.

Example: Corporations Amendment (Insolvency) Bill 2007

2.74         In Alert Digest No. 6 of 2007, the Committee commented on proposed new subsection 161A(4) of the Corporations Act 2001, to be inserted by this bill, which would declare an offence based on new subsections 161A(2) or (3) to be an offence of strict liability. The Committee noted that the explanatory memorandum to the bill provided no rationale for the creation of this strict liability offence, merely stating that the offence provisions were comparable to existing subsection 541(2) of the Corporations Act 2001.

2.75         The Committee also noted that the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers states that the application of strict liability to all physical elements of an offence is generally only considered appropriate where, among other things, the offence is not punishable by imprisonment. In this instance, however, item 121 of Schedule 1 of this bill would increase the penalty for an offence against proposed new subsections 161A(2) or (3) to 10 penalty units or imprisonment for three months or both. The Committee sought the Treasurer’s advice about whether the imposition of strict liability was justified in these circumstances and the reasons for the apparent departure from the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.[45]

2.76         The Parliamentary Secretary to the Treasurer responded that:

The new offence provision is comparable to existing subsection 541(2), which makes an offence based on subsection 541(1) (which requires notification that a company is in liquidation) one of strict liability. Several other offence provisions in the Act such as sections 448C, 448D and 471A have similar penalties. It is also considered that a failure on the part of a company in external administration to set out its former name on all its public documents and negotiable instruments may have serious consequences. It may mislead or disadvantage creditors who may not associate the new name with the company they have been dealing with.

It is acknowledged that criminal, civil and administrative sanctions in the Bill as well as in the Corporations Act may not be consistent with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Government considers that a broad review of sanctions in the Corporations Act should be undertaken rather than making reforms on an ad hoc basis which may introduce inconsistencies and anomalies into the Corporations Act.

Accordingly, the Treasurer has instituted a broad review of sanctions in the Corporations Act. A discussion paper was released and made publicly available in March 2007. The review specifically addresses provisions that are inconsistent with the Government’s criminal law policy, including the enactment of offences of strict liability and imprisonment for strict liability offences.

It is intended to consider the alignment of all penalties in the Corporations Act (including those in the Bill) with criminal law policy in the context of that review.[46]

2.77         The Committee thanked the Parliamentary Secretary for this response and indicated that it looked forward to the outcomes of the review. Submissions to the review closed on 1 June 2007.  

Example: Fisheries Legislation Amendment Bill 2007

2.78         In Alert Digest No. 6 of 2007, the Committee commented on two proposed new subsections of the Fisheries Management Act 1991, to be inserted by this bill, which would apply strict criminal liability to the element of the location of a foreign fishing boat in the Australian Fishing Zone. The Committee noted that the result of these amendments would be that, in a prosecution under either section, the prosecution would only have to establish that fishers were in the territorial sea of Australia, not that they intended to be in such waters.

2.79         The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers[47] states that applying strict liability to a particular physical element of an offence, as proposed in this instance, may be considered appropriate where there is “demonstrated evidence [current author’s emphasis] that the requirement to prove fault of that particular element is undermining or will undermine the deterrent effect of the offence, and there are legitimate grounds for penalising persons lacking ‘fault’ in respect of that element”. The Committee noted that, in respect of the proposed new subsections, the explanatory memorandum sought to justify the imposition of strict liability on the basis that the ‘Commonwealth Director of Public Prosecutions has not been able to prosecute people for these offences because there have been difficulties collecting sufficient evidence to prove that the people intended to be in the territorial sea.’[48]

2.80         The Committee indicated that it was unclear of the extent to which the imposition of strict liability in these instances was consistent with the Guide, particularly as the offences to which strict liability was to apply were created by legislation that commenced as recently as 23 June 2006. The Committee sought the Minister’s advice about whether the Guide was consulted in framing these amendments and, if so, what was the nature of the ‘demonstrated evidence’ and ‘legitimate grounds’ referred to in the Guide.[49]

2.81         The Minister for Fisheries, Forestry and Conservation responded to the Committee, advising that the Guide had been consulted in framing the amendments and that both the elements of ‘demonstrated evidence’ and ‘legitimate grounds’ outlined in the Guide were shown to exist:

As outlined in the Explanatory Memorandum, Commonwealth Director of Public Prosecutions (CDPP) has provided evidence that strict liability is required in order to make these provisions effective. The CDPP has not been able to prosecute the offences because of insufficient evidence to prove beyond a reasonable doubt that persons had the state of mind of intending to be in the territorial sea. The territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions. Consequently, it is highly unlikely that the person would enter the coordinates for the territorial sea into their technical navigational equipment. For this reason, it has not been possible to successfully prove that someone was intentionally in the territorial sea. The requirement to prove fault for the territorial sea aspect of the offences is therefore undermining the deterrent effect and the offence provisions are not operating as effectively as intended.

There are legitimate reasons for penalising persons lacking fault in respect of the territorial sea aspect of the offences. Sections 100B and 101AA of the FM Act [Fisheries Management Act 1991] are among the most serious foreign fishing offences in the FM Act because incursions into Australia’s territorial sea are the deepest type of incursion into the Australian Fishing Zone (AFZ). Incursions into Australia’s territorial sea pose serious threats to Australia’s sovereign interests including, inter alia, risks to the fisheries resources that are targeted illegally by foreign fishers deep within the AFZ.[50]

2.82         The Committee thanked the Minister for this response, but expressed concern about the fairness of applying strict liability to the element of the location of a foreign fishing boat in the territorial sea of Australia when ‘the territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions’, thus making it virtually impossible for a foreign fishing boat to know whether or not it has entered the territorial sea. The Committee considered that these provisions might be considered to trespass on personal rights and liberties but left it to the Senate as a whole to determine if they did so unduly.

2.83         This issue was raised during debate of the bill in the Senate, during which Senator Murray indicated that:

it would obviously be an act of fairness for charts to be issued which do show those boundaries. If it is possible, I make a request to the minister to investigate that matter and, if we are able to address that over time, I think we should.[51]

2.84         The Minister for Fisheries, Forestry and Conservation responded that:  

As I understand it, maps are produced in relation to the Australian economic zone, the 200 nautical mile zone. I understand that most maps do not have the 12-mile territorial sea or the three nautical miles, which is the state jurisdiction. But, without making any promises, I will pass on that suggestion because, if we are in the business of creating maps, it should not be too difficult to seek to incorporate something in the next round.[52]

2.85         The bill was agreed to without amendment.[53]

Example: Anti-Money Laundering and Counter-Terrorism Financing Bill 2006

2.86         In Alert Digest No. 13 of 2006, the Committee commented on a number of provisions within this bill which would impose absolute liability for a particular element of the offences created by subclauses 136(1), 137(1), 139(1), 140(1) and 141(1). 

2.87         In respect of the offences created by subclauses 136(1) and 137(1) of the bill, the element in respect of which absolute liability was to be imposed was that information was given, or a document produced, under the Act. The explanatory memorandum sought to justify the imposition of absolute liability on the basis that ‘it would be difficult for the prosecution to prove this element as the information would be only within the knowledge of the defendant.’ The Committee noted, however, that the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, states that:

Application of strict or absolute liability to a particular physical element of an offence has generally only been considered appropriate where one of the following considerations is applicable:

• There is demonstrated evidence that the requirement to prove fault of that particular element is undermining or will undermine the deterrent effect of the offence, and there are legitimate grounds for penalising persons lacking ‘fault’ in respect of that element. In the case of absolute liability, there should also be legitimate grounds for penalising a person who made an honest and reasonable mistake of fact in respect of that element.

• The element is a jurisdictional element rather than one going to the essence of the offence.

• Where one provision refers to another, strict liability should attach to that cross reference.

2.88         In light of the advice provided in the Guide, the Committee sought further justification from the Minister for the imposition of absolute liability.[54]

2.89          In respect of subclauses 139(1), 140(1) and 141(1), the element in respect of which absolute liability was to be imposed was that ‘at least one provision of Division 2, 3 or 4 of Part 2 applies to the provision of a designated service.’ Divisions 2, 3 and 4 of the bill dealt with identification procedures to be carried out by financial institutions on their customers.

2.90         The explanatory memorandum sought to justify these subclauses on the basis that their purpose was to ‘avoid the prosecution having to prove that the defendant was reckless’ as to this element of the offence, and that it would be ‘difficult for the prosecution to prove that the defendant was reckless’.  The Committee again drew the Minister’s attention to the justifications for strict and absolute liability outlined in the Guide and sought further justification for the imposition of absolute liability from the Minister. [55]  

2.91         The Minister for Justice and Customs responded that, in respect of the application of absolute liability to an element of the offences created by subclauses 136(1), 137(1), 139(1), 140(1) and 141(1) of the bill, the “application of absolute liability was included to overcome the ‘knowledge of law’ issue for these elements”.[56]

2.92         The Committee thanked the Minister for this response but emphasised that while the Committee acknowledged in its Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation, that the ‘knowledge of law’ issue may well be a justification for the imposition of strict liability, the Committee did not suggest that it was a justification for the imposition of absolute liability. The Committee sought the Minister’s further advice as to the particular manner in which the ‘knowledge of law’ issue arose in these circumstances and the justification for the application of absolute liability in response to this.[57]

2.93         The Minister responded to the Committee on 1 December 2006 advising that:

I have considered the Committee’s comments on the application of absolute liability to elements of offences contained within sub-clauses 136, 137, 139, 140 and 141. I accept that the application of absolute liability in these provisions appears inconsistent with applying strict liability to other provisions in the Bill with knowledge of law issues. I therefore undertake to amend these provisions replacing the application of absolute liability to the relevant elements with strict liability.[58]

2.94         The Committee thanked the Minister for this response and for the commitment to amend the relevant provisions. The amendments were included in the Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2007.

Powers of search and seizure without warrant

2.95         The Committee consistently draws the Senate’s attention to provisions that 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 such provisions 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 it being given.

Search of persons

2.96         In Alert Digest No. 2 of 2005, the Committee commented on several provisions in the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 that provided for search without warrant. This included amendments to the Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984, that:

• would permit an authorised officer to conduct a search of a detainee and his or her clothing without a warrant, based on the officer’s reasonable suspicion of various matters; and

• empower an authorised officer to conduct a strip search, without a warrant, of a detainee in order to determine whether there are weapons or other implements on the person.

2.97         The Committee noted from the explanatory memorandum that these provisions corresponded closely with provisions in the Migration Act 1958 and would ‘facilitate the seamless transfer of detainees from fisheries detention to immigration detention with one set of rules applying to the detainee’s entire period of detention’.[59] 

2.98         The Committee concluded that these provisions clearly trespassed on personal rights and liberties, but left it to the Senate as a whole to determine if they did so unduly.

2.99         While the Committee did not seek further information from the Minister in respect of this matter, the Minister for Fisheries, Forestry and Conservation wrote to the Committee on 28 April 2005, advising that:

These searches are necessary to ensure the safety of detainees and other people (such as officers or interpreters) and also to ensure that illegal foreign fishing offences can be fully investigated. Searches can be conducted under these provisions to find a weapon or other thing capable of being used to inflict bodily injury or evidence of an offence. Recent occasions where searches have been conducted (under existing powers in the FMA) have found quantities of shark fin, GPS equipment and syringes hidden on detainees. Additionally, there is a risk that knives which are commonly used in fishing operations could be easily concealed and used as a weapon against officers or other detainees.[60]

2.100      In respect of the provision that would empower an authorised officer to conduct a strip search, without warrant, of a detainee, the Minister advised that:

Strip searches are considered to be a measure of last resort and are subject to appropriate authorisation and strict safeguards...

A strip search may only be authorised in circumstances where there are reasonable grounds to suspect that the detainee is hiding a weapon or other thing capable of inflicting bodily injury or being used to escape from detention. In these circumstances, it is clearly essential that the detainee be appropriately searched to ensure both their safety and the safety of other people in the detention facility.

Strip searches are subject to very stringent rules and limitations aimed at protecting the welfare and dignity of the detainee. A strip search may only be carried out by a specially authorised officer of the same sex as the detainee.

This Bill does not authorise the search of body cavities and ensures that no more clothing is removed than is necessary to recover the hidden item. In practice, this means that strip searches could involve no more than the removal of a jacket or the detainee’s shoes and socks.[61]

2.101      The Committee thanked the Minister for this information, but reiterated its contention that these provisions ‘clearly trespass on personal rights and liberties’.[62] The Committee left it to the Senate as a whole to determine if they did so unduly. On 16 June 2005, the Senate made nine amendments to this bill, but none of the successful amendments directly related to this matter.[63]  

2.102      During the 41^st Parliament, the Committee also commented on provisions in the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 that provided for search without warrant. Relevant provisions included:

• Item 633 of Schedule 1 of this bill, which would insert a new paragraph into the Environment Protection and Biodiversity Conservation Act 1999 empowering an authorised officer who boards a vessel to search a person on the vessel and the person’s clothing;

• Clause 15 of the new Schedule 1 of the Environment Protection and Biodiversity Conservation Act 1999, to be inserted by item 835 of Schedule 1 of this bill, empowering an approved officer to conduct a search of a detainee, of the detainee’s clothing and any property under the detainee’s immediate control, to find out whether a weapon or evidence of a crime was concealed about the person of the detainee; and

• Clause 17 of the new Schedule 1 of the Environment Protection and Biodiversity Conservation Act 1999, also to be inserted by item 835 of Schedule 1 of this bill, which would allow approved officers to conduct strip searches on detainees in certain circumstances.[64]

2.103      The Committee sought advice from the Minister in respect of each of these clauses. In relation to item 633 and clause 15, the Committee sought advice on the nature of the search provided for, noting that the clauses did not distinguish between a frisk search and an ordinary search. In respect of clause 15, the Committee also asked the Minister whether the exercise of these search powers might be limited to circumstances where an authorised officer has reasonable grounds to believe that the detainee has a weapon or evidence concealed about his/her person. The Committee noted that such a limitation was provided for in similar provisions in the Migration Act 1958.

2.104      In respect of proposed clause 17 of the new Schedule 1 of the Environment Protection and Biodiversity Conservation Act 1999, the Committee noted the advice in the explanatory memorandum that the clause ‘corresponds closely to section 252A of the Migration Act 1958’, but commented that no justification or reasons were provided in the explanatory memorandum for the application of these strip search provisions in the context of this bill. The Committee indicated that it considers the power to strip search ‘represents a significant trespass on personal rights and liberties and should only be conferred in exceptional and specific circumstances’, which should be fully explained and justified in the explanatory memorandum.[65] The Committee sought the Minister’s advice as to the justification for the inclusion of the power to conduct strip searches in this context and whether appropriate protocols had been developed for the authorisation and conduct of such searches under the Environment Protection and Biodiversity Conservation Act 1999.

2.105      The Minister for the Environment and Heritage responded to the Committee in a letter dated 10 November 2006. In respect of item 633 of Schedule 1 of the bill, the Minister advised that:

the nature of the search under paragraph 406(l)(ba) is essentially the equivalent of a “frisk search”, as defined under subsection 413(3) of the EPBC Act, by a person of the same sex, and it is considered unnecessary to specify the type of search in new paragraph 406(1)(ba), which is appropriately limited by new section 406A of the Bill.[66]

2.106      The Committee thanked the Minister for this advice but reiterated that the Committee considers it desirable that the nature of a personal search be clearly defined, particularly where the Act makes a distinction between the types of searches permitted in particular circumstances. The Committee continued to draw Senators’ attention to the provision on the basis that it may be considered to trespass unduly on personal rights and liberties.[67]

2.107      In respect of the Committee’s queries regarding Clause 15 of the new Schedule 1 of the Environment Protection and Biodiversity Conservation Act 1999, the Minister responded that:

The limitations in clause 15 of new Schedule 1 of the Bill are such that the nature of the search is essentially the equivalent of a “frisk search”, as defined under subsection 413(3) of the EPBC Act, by a person of the same sex.

The search power in clause 15 of Schedule 1 of the Bill mirrors clause 15 of Schedule 1A of the Fisheries Management Act 1991, which in turn is modelled on section 252 of the Migration Act 1958. Consistency is essential to providing a consistent detention and search regime between the EPBC Act and Migration Act, and fisheries legislation. It will facilitate seamless transfer of detainees from environment detention to immigration detention with one set of rules applying to the detainee’s entire period of detention. It is not necessary or appropriate to specify the type of search in clause 15 of new Schedule 1 of the Bill, which contains sufficient safeguards to ensure that all searches are conducted in an appropriate manner. In addition, consistent with clause 15 of Schedule lA of the Fisheries Management Act 1991, the exercise of the search powers in Clause 15 need not also be limited to circumstances where an authorised officer has reasonable grounds to believe that the detainee has a weapon or evidence concealed about his or her person.[68]

2.108      The Committee thanked the Minister for this response. While noting the Minister’s statements regarding the need for consistency of approach, the Committee reiterated its preference for the nature of the personal search to be explicitly stated and for the exercise of the power to be further limited by the formation of a belief on reasonable grounds. The Committee continued to draw Senators’ attention to the provision on the basis that it may be considered to trespass unduly on personal rights and liberties.[69]  

2.109      In relation to proposed Clause 17 of the new Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999,  the Minister advised that: 

The power to conduct strip searches under clause 17 of the proposed new Schedule 1 is considered to be a measure of last resort and is subject to appropriate authorisation and strict safeguards. High level authorisation for each strip search must be obtained from either the Secretary, one of the Deputy Secretaries, or the Director of National Parks of the Australian Government Department of the Environment and Heritage or a magistrate.

A strip search may only be authorised in circumstances where there are reasonable grounds to suspect that the detainee is hiding a weapon or other thing capable of inflicting bodily injury or being used to escape from detention. In these circumstances, it is essential that the detainee be appropriately searched to ensure both their safety and the safety of other people in the detention facility...

My Department will be working closely with the Department of Immigration and Multicultural Affairs to establish the mechanisms and protocols needed to implement the amendments.

It is considered highly unlikely that it would ever be necessary to conduct strip searches of environment detainees. I understand that under the powers in the Migration Act no adult has been strip searched since January 2003 and no minor has ever been strip searched.[70]

2.110      The Committee thanked the Minister for this response, noting particularly the Minister’s statement that ‘it is considered highly unlikely that it would ever be necessary to conduct strip searches of environmental detainees.’ The Committee considered that the lack of demonstrated need for provisions of this type called into question the justification offered for the inclusion of such an intrusive power. Consequently, the Committee continued to draw Senators’ attention to the provision.[71] 

2.111      The Committee also noted the Minister’s advice that the Department of the Environment and Heritage would be working closely with the Department of Immigration and Multicultural Affairs to establish the mechanism and protocols needed to implement the amendments and sought the Minister’s further advice as to whether these mechanisms and protocols would be tabled in Parliament. The Minister responded on 5 December 2006, advising that he did not intend to include in the Environment Protection and Biodiversity Conservation Act 1999 ‘an equivalent provision to section 499 of the Migration Act 1958, which provides for the Immigration Minister to issue written directions to persons exercising a power or function under the Migration Act, with the written directions to be tabled in Parliament.’[72] The Minister instead offered to provide relevant sections of the mechanisms and protocols to the Committee once finalised.

2.112      The Committee thanked the Minister for this further response, noting that its purpose in raising this issue was to ensure that the Parliament as a whole was appropriately informed about the content of the mechanisms and protocols. This bill was passed without amendment.

Abrogation of legal professional privilege

2.113      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 that removes or diminishes this right.

2.114      In Alert Digest No. 12 of 2004, the Committee noted that Clause 4 of the James Hardie (Investigations and Proceedings) Bill 2004 would abrogate legal professional privilege in relation to a wide range of records and books connected with the Special Commission of Inquiry into the conduct of the James Hardie Group of companies, which was conducted in NSW. The Committee also noted the retrospective effect of the legislation, which would abrogate legal professional privilege in respect of records produced to, or created by, the James Hardie Special Commission of Inquiry and transferred from the NSW Government to the Australian Securities and Investments Commission, as well as relevant material obtained after the commencement of the bill.[73]

2.115      The Committee concluded that ‘clause 4 clearly trespasses on the rights of the James Hardie Group of companies (to the extent that the group can be considered to enjoy such rights)’, but left to the Senate as a whole the question of whether it did so unduly.  

2.116      In considering this matter, the Committee also commented on the criteria used to justify the abrogation of legal professional privilege. The Committee noted the rationale provided in the explanatory memorandum, which argued that:

As recognised by the High Court in the Daniels case, legal professional privilege is not merely a rule of substantive law but an important common law right. Nevertheless, there are situations in which its abrogation is justified in order to serve higher public policy interests. One such situation is the effective enforcement of corporate regulation.

The community must have confidence in the regulation of corporate conduct, financial markets and services. This confidence would be undermined if ASIC was unduly inhibited in its ability to obtain and use material necessary to conduct investigations and take enforcement action where appropriate in relation to matters arising from the James Hardie Special Commission of Inquiry and any subsequent investigations and prosecutions instigated by the regulator.

In relation to matters concerning, or arising out of, the James Hardie Special Commission of Inquiry, the Government considers that it is clearly in the public interest that any investigation and subsequent action by ASIC and the DPP be unfettered by claims of legal professional privilege.[74]

2.117      The Committee expressed concern at the use of criteria such as ‘higher public policy interests’ to justify the abrogation of legal professional privilege as it considered that such criterion was ‘not susceptible to objective definition’. The Committee considered that, if such an approach was to be adopted in the future, ‘the criteria should be better developed and defined’ and sought the Treasurer’s advice on the development of this approach. The Committee concluded that:

in the absence of a better developed definition of criteria such as ‘higher public policy interests’, the Committee does not consider that the bill provides a useful precedent for future legislation intended to abrogate legal professional privilege.[75]

2.118      The Parliamentary Secretary to the Treasurer responded to the Committee in a letter dated 29 June 2005. In relation to the Committee’s query regarding whether more objective and well defined criteria would be developed to justify any abrogation of legal professional privilege in the future, the Parliamentary Secretary indicated that ‘whether such an approach might be adopted in the future is hypothetical.’[76] In respect of the retrospective effect of the legislation, the Parliamentary Secretary indicated that:

...it is the Government’s view that ASIC must be provided with the powers necessary to conduct a comprehensive investigation into the conduct of the James Hardie Group, its directors and officers, and its advisers.

I also wish to reiterate, as was previously indicated to the Committee, that the higher public policy interest in this matter is clear.[77]  

2.119      The Committee thanked the Parliamentary Secretary for this response and reiterated that it did not question the public policy imperatives of this case, but merely, in accordance with its usual practice, drew the Senate’s attention to the competing interests involved. The Committee reiterated that it was concerned with the use of criteria such as ‘higher public policy interests’, especially in light of the phrasing in the explanatory memorandum, which the Committee considered seemed to suggest the formulation of a range of ‘higher public policy interests’ that might justify the abrogation of legal professional privilege. The Committee noted that the Parliamentary Secretary’s response seemed to indicate that this was not the case.

2.120      The Committee concluded that:

While the question of whether such an approach might be adopted again may be hypothetical, the Committee considers that the passage of this legislation has introduced a measure of uncertainty into the area of legal professional privilege which is, as noted by the explanatory memorandum, an important common law right. The development of a more objective approach, which could alleviate that uncertainty, may be warranted.[78]

Abrogation of common law rights of action

2.121      In Alert Digest No. 5 of 2006, the Committee commented on proposed amendments to Sections 494AA and 494AB of the Migration Act 1958, to be inserted by items 28 to 39 of Schedule 1 of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. Sections 494AA and 494AB of the Migration Act 1958 prohibit the institution or continuation of certain court proceedings relating to various unlawful non-citizens who seek to enter Australia.

2.122      The Committee had first raised its concerns about this apparent abrogation of common law rights of action in its examination of the Migration Legislation Amendment (Transitional Movement) Act 2002, which inserted the current section 494AB in the Principal Act. In its Fifth Report of 2002, the Committee noted the then Minister’s advice that common law rights of action had not been completely extinguished as there was still a right of appeal to the High Court in relation to certain matters and that the bar on rights of action was expressly limited to specified matters, thus preserving the right to take legal action in respect of all other matters. The Minister had also advised that the intention of the section was to frustrate abuse of proceedings and to deter unreasonable actions against Commonwealth officials.

2.123      The Committee noted that proposed new subsection 494AB(1)(c), to be inserted by item 37 of Schedule 1 of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, appeared to widen the range of court proceedings which could not be instituted or continued under that section. That is, it extended the range of proceedings to include:

proceedings relating to the lawfulness of the detention of a person who is brought to Australia, as a transitory person, under section 198B, being a detention based on the status of the person as an unlawful non-citizen.[79]

2.124      The Committee noted that the explanatory memorandum did not provide an explanation for this change and sought the Minister’s advice as to the reason for this apparent extension of the limitation on the institution or continuation of court proceedings, and whether this amendment was in response to particular court proceedings.

2.125      The Committee also noted that item 40 of Schedule 1 to the bill would apply the prohibition on criminal proceedings, outlined in proposed sections 494AA and 494AB, retrospectively to proceedings instituted on or after 13 April 2006. The Committee noted that this was the day that the Minister announced the intention to introduce legislation along the lines of this bill, but the explanatory memorandum failed to clarify the reason for this retrospective application. The Committee sought the Minister’s advice as to the need for this retrospectivity in relation to these provisions.

2.126      No response was received from the Minister in respect of these issues as, on 14 August 2006, the Prime Minister announced that the Government would not be proceeding with the bill.

Constitution of a military jury

2.127      In Alert Digest No. 11 of 2006, the Committee commented on provisions in the Defence Legislation Amendment Bill 2006 that might be considered to trespass on personal rights and liberties. The Committee noted that, by virtue of proposed subsection 115(1) of this bill the Australian Military Court would have jurisdiction to try any charge against any Defence member or Defence civilian. The classes of offences to be heard by a Military Judge and jury could potentially include offences of treason, murder and manslaughter. The Committee expressed concern that the provision for a military jury to be composed of six members (proposed section 122) and to determine questions of guilt on the agreement of a two-thirds majority (proposed subsection 124(2)) was an infringement on the rights of an individual.

2.128      The Committee noted that the constitution of a military jury and the manner in which questions were to be determined differed substantially from the constitution and operation of civilian juries in criminal matters, which generally required, as a minimum, the agreement of 10 out of 12 jurors and then only in specific circumstances and with the approval of the judge. As the explanatory memorandum was silent on the basis for the proposed constitution and operation of a military jury, and the extent to which the rights of the individual had been balanced against the particular needs of the military justice system, the Committee sought the Minister’s advice as to the justification for the apparent variance from accepted practice.

2.129      The Minister for Veterans’ Affairs noted the Committee’s comments on the constitution of the military jury and advised that:

...for the Class 1, most serious offences, I have instigated a specific amendment to meet the civilian practice referred to in your letter.[80]

2.130      The Committee thanked the Minister for this response and for the commitment to amend the bill. The relevant amendments were passed by the House of Representatives on 29 November 2006.[81]

Prohibition on instituting proceedings

2.131      In Alert Digest No. 2 of 2005, the Committee commented on provisions in the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005, which would insert a new subsection 84 (1BA) in the Fisheries Management Act 1991 and a new subsection 42 (2AAA) in the Torres Strait Fisheries Act 1984. The effect of each of these new provisions was to grant immunity from both civil and criminal proceedings for officers who, in the exercise of powers under the respective Acts, restrained the liberty of a person on a boat. Expressed another way, these provisions prohibited the institution of proceedings for restraints on the liberty of persons on board a detained ship.

2.132      The Committee noted from the explanatory memorandum that the provisions were similar to subsections in the Migration Act 1958 and the Customs Act 1901, which had been inserted by the Border Protection (Validation and Enforcement Powers) Act 2001, following the Tampa matter. In keeping with the Committee’s approach in that case, the Committee expressed the view that these provisions ‘clearly trespass on the personal rights of those who may be detained’ but left to the Senate as a whole the question of whether the bill did so unduly.[82]

2.133      The Minister for Fisheries, Forestry and Conservation responded to the Committee’s comments in a letter dated 28 April 2005. The Minister advised that:

These two new subsections directly relate to specific, existing powers in the FMA [Fisheries Management Act 1991] and TSFA [Torres Strait Fisheries Act 1984] where, if an officer has reasonable grounds to believe that a boat was used or is intended to be used to commit an illegal foreign fishing offence, the officer may detain, tow, or require a boat to be moved to a specified place in Australia.

The two new subsections are necessary to ensure that officers are protected in the lawful exercise of their duties. The Australian Government believes it is inappropriate to allow litigation to compromise lawful actions that are aimed at protecting Australia’s sovereign right to protect both its borders and its fisheries resources.

The Bill does not purport to affect the jurisdiction of the High Court under section 75 of the Constitution and, as such, it does not provide a blanket exclusion from judicial supervision.[83]

2.134      The Committee thanked the Minister for this response, noting the Minister’s contention that the provisions were ‘necessary to ensure that officers are protected in the lawful exercise of their duties’ and that ‘it was inappropriate to allow litigation to compromise lawful actions.’[84] However, the Committee asserted that if officers were carrying out their duties in a lawful manner, it was difficult to see why they required more protection than was offered by that inherent lawfulness.[85]

2.135      The Committee also noted that, while the bill did not provide a blanket exclusion from judicial supervision, the effect of these provisions was that the legality of actions by the Commonwealth and its officers could only be tested in the High Court. The Committee considered that further explanation of the need to restrict judicial supervision to this extent was warranted.[86] The Committee reiterated its assertion that the provisions trespassed on personal rights and liberties, but left it to the Senate as a whole to consider whether they did so unduly.

2.136      On 16 June 2005, the Senate made nine amendments to this bill. None of these amendments addressed this issue.

Voting rights of prisoners

2.137      In Alert Digest No. 1 of 2006, the Committee commented on proposed new subsection 93(8AA) of the Commonwealth Electoral Act 1918, to be inserted by
item 15 of Schedule 1 of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, which would remove the entitlement to vote at any Senate or House of Representatives election for any person serving a sentence of imprisonment. The existing law only prohibited from voting those persons serving a sentence of three years or longer.

2.138      The voting rights of prisoners have been subject to considerable debate over the past two decades. Prior to 1983, the Commonwealth Electoral Act 1918 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.

2.139      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
five 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.

2.140      Therefore, the AEC submitted that a person should be denied a vote only where they were actually serving a sentence of five years or more. This approach was ultimately included in the Commonwealth Electoral Act by the Electoral and Referendum Amendment Act 1995.

2.141      The approach advocated by a majority of members of the Joint Standing Committee on Electoral Matters 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.

2.142      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 of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005

2.143      In considering this bill, the Committee noted that, since the existing law removed the entitlement to vote only for persons serving a sentence of three years or longer, the proposed amendment (which would remove the entitlement to vote at any Senate or House of Representatives election for any person serving a sentence of imprisonment), appeared to trespass on the personal rights of those persons currently serving a term of imprisonment of less than three years, and on the rights of those who may have a prison sentence imposed on them in the future.

2.144      The Committee reminded Senators that the voting rights of prisoners had been the subject of debate over many years and drew Senators’ attention to the Committee’s Seventh Report of 1998 and to the report Work of the Committee during the 38^th Parliament, both of which outlined the Committee’s thinking in respect of this issue. While advising Senators that this provision might be considered to trespass upon personal rights and liberties, the Committee left it to the Senate as a whole to determine if it did so unduly.

2.145      This bill was passed as the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006, with the provision removing the entitlement of prisoners to vote intact. [87]

Navigation: Previous Page | Contents | Next Page