Principle (h): Personal rights and liberties
Overview
Senate standing order 23(3)(h) requires the committee to scrutinise each instrument as to whether it trespasses unduly on personal rights and liberties. Under this principle, the committee will typically be concerned with instruments which:
- provide for the collection, use and/or disclosure of personal information;
- contain coercive powers;
- apply retrospectively or have retrospective effect;
- abrogate the privilege against self-incrimination;
- confer immunity from liability;
- exclude or limit procedural fairness;
- reverse the legal or evidential burden of proof; or
- contain offences of strict or absolute liability.
Collection, use and disclosure of personal information
Provisions which enable the collection, use and disclosure of personal information may trespass on an individual's right to privacy, and should generally be included in primary legislation, rather than delegated legislation. Where an instrument nevertheless contains such provisions, the explanatory statement should explain:
- the nature and scope of the provisions, including the extent of the personal information that may be disclosed and the persons or entities to whom disclosure is permitted;
- why the provisions are considered necessary and appropriate;
- whether a privacy impact statement was prepared; and
- what safeguards are in place to protect the personal information, and whether these are set out in law or in policy (including whether the Privacy Act 1988 applies).
Coercive powers
Provisions which contain coercive powers have the potential to seriously trespass on personal rights and liberties and should generally not be included in delegated legislation. These include provisions which authorise persons to enter, search, seize or destroy property or to use force against others. Where an instrument nevertheless contains such provisions, the explanatory statement to the instrument should explain:
- the nature and scope of the provisions, including any constraints or conditions on the grant and exercise of the powers, and the circumstances in which the powers will be exercised;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- who may exercise the powers, and whether they are required to possess specific skills or qualifications;
- whether the use of powers is subject to appropriate oversight;
- whether compensation is available for any property seized or destroyed in the exercise of the powers;
- whether independent review is available of decisions made, and actions taken, in connection with the exercise of the powers; and
- whether the provisions comply with Chapters 7 and 8 of the Attorney-General's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Retrospective commencement or effect
The common law has long recognised the right to protection against retrospective laws. Such laws undermine legal certainty. Retrospectivity will arise where an instrument commences retrospectively or has a retrospective effect. For example, an instrument may have a retrospective effect where it attaches new conditions or requirements to processes which had commenced under a previous legal framework, via the application of transitional provisions.
Where an instrument commences retrospectively, or has a retrospective effect, the explanatory statement to the instrument should explain:
- the nature and scope of the provisions;
- why the retrospectivity is considered necessary and appropriate; and
- whether any person has been, or may be disadvantaged by the retrospectivity and, if so, what steps have been taken or will be taken to avoid such disadvantage.
The committee may also raise retrospective commencement under scrutiny principle (a), compliance with legislative requirements, in ascertaining whether the instrument complies with section 12 of the Legislation Act 2003.
Abrogation of the privilege against self-incrimination
The common law privilege against self-incrimination provides that a person cannot be required to answer questions or produce material which may incriminate them. Where an instrument abrogates the privilege against self-incrimination, the committee will generally expect the instrument to provide appropriate safeguards including use and derivative use immunity to prevent information from being used in criminal proceedings against the person. The committee will also expect the instrument to impose restrictions on the sharing of information obtained with law enforcement agencies. Further information on these safeguards is available in Chapter 9 of the Attorney-General's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Where an instrument abrogates the privilege against self-incrimination, the explanatory statement to the instrument should explain:
- the nature and scope of the abrogation of the privilege against self-incrimination, including any limitations on the abrogation;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- the provision of use or derivative use immunity; and
- any restrictions on the sharing of information obtained with law enforcement agencies.
Immunity from liability
Provisions which confer immunity from liability or extend existing immunities, for example, by providing that criminal or civil proceedings cannot be brought against specified persons or bodies, limit the common law right to bring an action to enforce legal rights. Where an instrument includes such provisions, the explanatory statement to the instrument should explain:
- the nature and scope of the immunity;
- why the breadth of the immunity is considered necessary and appropriate; and
- why the immunity is necessary for each specific class of person to whom it applies.
Procedural fairness
The common law right to procedural fairness is underpinned by the fair hearing rule and the rule against bias. The fair hearing rule requires a person whose rights or interests may be adversely affected by a decision to be given an adequate opportunity to present their case and have it considered before a final decision is made. Under the no bias rule, decision-makers must not be biased in fact and must not appear to be biased. Where an instrument limits or denies the right to procedural fairness, such as by restricting or excluding disclosure of adverse information to the person affected by the decision, the explanatory statement should provide a comprehensive justification for the exclusion or limitation.
Reverse burden of proof
The right to be presumed innocent is a fundamental principle of the Australian legal system. Normally, the right requires the prosecution to prove all elements of an offence. Consequently, this right is undermined by provisions which require the defendant to raise evidence about the matter (reverse evidential burden), or positively prove a matter (reverse legal burden). In practice, this issue typically arises in the context of 'offence-specific defence' provisions, which establish a defence to the prosecution where the defendant raises evidence about a particular matter. If an instrument contains such provisions, the explanatory statement should explain:
- the nature and scope of the provisions;
- why it is considered necessary and appropriate to reverse the burden of proof, noting that a much stronger justification is necessary to justify reversing the legal burden;
- whether the provisions satisfy the following test from the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers at [4.3]:
- whether the relevant matter is peculiarly within the knowledge of the defendant; and
- whether it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter; and
- if the provision reverses the legal burden of proof (requires the defendant to positively prove a matter), why this is considered necessary.
Strict and absolute liability
The requirement for the prosecution to prove fault on the part of a defendant is an important aspect of the common law right to be presumed innocent. The application of strict and absolute liability undermines this right by removing the requirement to prove fault in relation to one or more physical elements of an offence. Where an instrument includes offences of strict or absolute liability, the explanatory statement should explain:
The explanatory statement should include a particularly robust justification for imposing absolute liability, as this not only removes the fault element but also excludes the defence of honest and reasonable mistake of fact.
Explanatory statement checklist
The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (h).
- Collection, use and disclosure of personal information
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Where an instrument provides for the collection, use or disclosure of personal information, the explanatory statement should explain:
- the nature and scope of the provisions, including the extent of the personal information that may be disclosed and the persons or entities to whom disclosure is permitted;
- why the provisions are considered necessary and appropriate;
- whether a privacy impact statement was prepared; and
- what safeguards are in place to protect the personal information, and whether these are set out in law or in policy (including whether the Privacy Act 1988 applies).
- Coercive powers
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Where an instrument includes entry, search and seizure powers, provides for the confiscation or destruction of personal property, or authorises the use of force, the explanatory statement should explain:
- the nature and scope of the provisions, including any constraints or conditions on the grant and exercise of the powers, and the circumstances in which the powers will be exercised;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- who may exercise the powers, and whether they are required to possess specific skills or qualifications;
- whether compensation is available for any property seized or destroyed in the exercise of the powers;
- whether independent review is available of decisions made, and actions taken, in connection with the exercise of the powers; and
- whether the provisions comply with Chapters 7 and 8 of the Attorney General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
- Retrospective commencement or effect
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Where an instrument commences retrospectively, or commences prospectively but has a retrospective effect, the explanatory statement should explain:
- the nature and scope of the provisions;
- why the retrospectivity is considered necessary and appropriate; and
- whether any person has been, or may be disadvantaged by the retrospectivity and, if so, what steps have been or will be taken to avoid such disadvantage.
- Abrogation of privilege against self-incrimination
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Where an instrument abrogates this privilege, the explanatory statement should explain:
- the nature and scope of the abrogation of the privilege against self-incrimination, including any limitations on the abrogation;
- why the provisions are necessary and appropriate, including how the public interest is served by their inclusion in the instrument;
- the provision of use or derivative use immunity; and
- any restrictions on the sharing of information obtained with law enforcement agencies.
- Immunity from liability
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Where an instrument confers immunity from liability, the explanatory statement should explain:
- the nature and scope of the immunity;
- why the breadth of the immunity is considered necessary and appropriate; and
- why the immunity is necessary for each specific class of person to whom it applies.
- Procedural fairness
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Where an instrument excludes or limits the right to procedural fairness, for example, by infringing upon the fair hearing rule or no bias rule, the explanatory statement should comprehensively explain why it is necessary to exclude or limit procedural fairness.
- Reverse burden of proof
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Where an instrument reverses the evidential or legal burden of proof by requiring the defendant to raise evidence about a matter (evidential burden) or to positively prove a matter (legal burden), the explanatory statement should explain:
- the nature and scope of the provisions; and
- why it is considered necessary and appropriate to reverse the burden of proof, noting that a much stronger justification is necessary to justify reversing the legal burden;
- whether the provisions satisfy the following test from the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers at [4.3]:
- whether the relevant matter is peculiarly within the knowledge of the defendant; and
- whether it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish; and
- if the provision reverses the legal burden of proof (requires the defendant to positively prove a matter), why this is considered necessary.
- Strict and absolute liability
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Where an instrument contains offences of strict or absolute liability, the explanatory statement should explain: