Senate Legislation Committees Consolidated reports on the consideration of bills January-June 2005 Vol. 2 Legal and Constitutional, Rural and Regional Affairs and Transport (2024)

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Senate Legislation Committees Consolidated reports on the consideration of bills January-June 2005 Vol. 2 Legal and Constitutional, Rural and Regional Affairs and Transport

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Australian Senate

Senate Legislation Committees

Reports on the Consideration of Bills January- June 2005

Volume 2

June 2005

Australian Senate

Senate Legislation Committees

Reports on the Consideration of Bills

January - June 2005

Volume 2

Legal and Constitutional Legislation Committee

Rural and Regional Affairs and Transport Legislation Committee

June 2005

© Parliament of the Commonwealth of Australia 2005

ISSN 1038-2755

This document was produced from camera-ready copy and printed by the Printing Unit, Department of the Senate, Parliament House, Canberra.

TABLE OF CONTENTS

Legal and Constitutional Legislation Committee

• Administrative Appeals Tribunal Am endment Bill 2004, dated March 2005 ..... .. .... ..... ... .... .. ...................... .... ..... .... .. ... ..... .... ..... ........... ...... .... .. ... 1

• Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 [2005], dated March 2005 ... .. ... .... .. ... .. ............ ...... ... .......... .... ..... ...... .. 45

• Criminal Code Amendment (Suicide Related Material Offences) Bi112005**, dated May 2005 .... ... ..... .. ...... ... .... ..... ..... ....... ... ...... .... ... .... ... .... .... .. 103

• Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill 2005, dated June 2005 ..... .... .. ... .... .... ... 165

• Migration Litigation Reform Bill 2005*, dated May 2005 ... .... ...... ... ........ ........... 235

• National Security Information Legislation Amendment Bill 2005*, dated May 2005 ....... .. ... ....... .. .... .. ... .. ...... .... ...... ... .. .... ............... .. .. ...... .. 285

Rural and Regional Affairs and Transport Legislation Committee

• Auslink (National Land Transport) Bill 2004 and the Auslink (National Land Transport-Consequential and Transitional Provisions) Bill 2004*, dated May 2005 .... .... .. .. ...... .... ... ....... ...... .. ... ...... ... ...... . 349

• Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005*, dated May 2005 .. ..... ..... ... ... ...... .......... .. ....... ... ... .. 405

• Provisions of bill referred to committee.

The Senate

Legal and Constitutional Legislation Committee

Administrative Appeals Tribunal

Amendment Bill 2004

March2005

© Commonwealth of Australia 2005

ISBN 0 642 71467 3

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra

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MEMBERS OF THE LEGISLATION COMMITTEE Members

Senator Marise Payne, Chair, LP, NSW Senator the Hon. Nick Bolkus, Deputy Chair, ALP, SA Senator Brian Greig, AD, WA * Senator Joseph Ludwig, ALP, QLD Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member

* Senator Aden Ridgeway, AD, NSW to replace Senator Brian Greig for matters relating to the Indigenous Affairs portfolio

Participating Members

Senator the Hon. Eric Abetz, LP, T AS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, WA Senator George Brandis, LP, QLD Senator Geoff Buckland, LP, QLD Senator Bob Brown, AG, TAS Senator George Campbell, ALP, NSW

Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Hon R Colbeck, LP, TAS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, W A

Senator Christopher Evans, ALP, W A Senator the Hon. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Harradine, IND, TAS

Secretariat

Mr Owen Walsh Secretary

Senator John Hogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Linda Kirk, ALP, SA Senator Susan Knowles, LP, W A Senator Kate Lundy, ALP, ACT Senator Ross Lightfoot, LP, W A Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NP A, VIC Senator Jan McLucas, ALP, QLD SenatorS Mackay, ALP, TAS Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator the Hon. Nick Sherry, ALP, TAS Senator Ursula Stephens, ALP, NSW Senator Aden Ridgeway, AD, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Tierney, LP, NSW Senator John Watson, LP, TAS

Ms Kelly Paxman Mr Morgan Pyner Ms Marina Seminara

Principal Research Officer Research Officer Executive Assistant

Suite S1.61 Parliament House

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au iii

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TABLE OF CONTENTS

MEMBERS OF THE LEGISLATION COMMITTEE ................................ iii

RECOMMENDATIONS ................................................................................. vii

ABBREVIATIONS ............................................................................................ ix

CHAPTER ONE ................................................................................................. !

INTRODUCTION .................................................................................................... 1

Key provisions of the Bill ............ ............ ....................... .. .. ....... .......... ......... .. ........ I

Consultation on the Bill .............................................. ................... .... ........... .......... 2

Background .............. ............ ... ...................... ............... .......... .. .. ......................... .. .. 3

Conduct of the inquiry ....................... .. ................... ..... ..................................... ...... 4

Acknowledgements ................................................................................................ 4

Notes on references .............. ......................................................................... ..... .... 4

CHAPTER TW 0 ................................................................................................ 5

ISSUES ...................................................................................................................... 5

Removal of the requirement that the President of the AAT must be a Federal Courtjudge (item 15) .......................................................................................... ... 5

Removal of provisions allowing tenured appointment of members (item 21) ..... 12

Provisions allowing the President to remove a member from a tribunal, and to reconstitute a tribunal (item 66) ................ .. .......................... .......... .. ................... 17

Provisions allowing the Tribunal to request a person applying for review to amend their statement of reasons (item 95) .. .................. ... .. ................................. 21

Provisions allowing the Minister rather than the Governor-General to assign members to Divisions of the Tribunal (item 36) .................................................. 23

Other issues ... .... ......... .................... .. .. ......... ... ... ........................ ........ ... ... ... .. ......... 24

ADDITIONAL COMMENTS AND POINTS OF DISSENT BY SENATOR BRIAN GREIG ................................................................................................. 29

Removal of provisions allowing tenured appointments of members .... .............. . 29

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Removal of the requirement that a presidential member should be a part of a tribunal considering certain migration matters: ..... .. ........................ .. ............... .. .. 30

Ordinary members to constitute multi-member tribunals .............. ....... ..... ... .. .. ... 30

APPENDIX 1 ..................................................................................................... 31

ORGANISATIONS AND INDIVIDUALS THAT PROVIDED THE COMMITTEE WITH SUBMISSIONS ................................................................ 31

APPENDIX 2 ..................................................................................................... 33

WITNESSES WHO APPEARED BEFORE THE COMMITTEE .................. 33

Sydney, Tuesday 1 February 2005 .. ..... ... ...... ........... .................. ... ...... ... .......... .... 33

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RECOMMENDATIONS

Recommendation 1

2.28 The Committee recommends that the Bill be amended to retain the requirement that the President of the Administrative Appeals Tribunal must be a judge of the Federal Court of Australia. That is, subsection 7(1) should not be repealed.

Recommendation 2

2.48 The Committee recommends that the Bill be amended to specify a minimum term of appointment of three years. Subsection 8(3) of the Act should be amended to read: 'subject to this Part, a member holds office for a term of at least 3 years and not more than 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.'

Recommendation 3

2.63 The Committee recommends that proposed subsection 23(9)(a) be amended, in order to provide guidance as to the circ*mstances under which the President should exercise the power to remove a member, and reconstitute a tribunal, 'in the interests of justice'.

Recommendation 4

2.64 The Committee recommends that new sections 23 and 23A should proceed, subject to the retention in the Act of the mandatory requirement that the President be a Federal Court judge (Recommendation 1).

Recommendation 5

2.78 The Committee recommends that item 36 of the Bill be amended to include the requirement that the Minister must first consult with the President before making or altering assignments of members to a Division of Divisions of the Tribunal.

Recommendation 6

2.90 Subject to the preceding recommendations, the Committee recommends that the Bill proceed.

vii 7

8

AAT

ADR

ARC

Law Council

NWRN

PIAC

SBICLS

the Act

the Bill

the Tribunal

ABBREVIATIONS

Administrative Appeals Tribunal

Alternative Dispute Resolution

Administrative Review Council

Law Council of Australia

National Welfare Rights Network

Public Interest Advocacy Centre

South Brisbane Immigration and Community Legal Service

Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Amendment Bill 2004

the Administrative Appeals Tribunal

ix 9

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CHAPTER ONE

INTRODUCTION

1.1 On 1 December 2004, the Senate referred the Administrative Appeals Tribunal Amendment Bill 2004 (the Bill) to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 10 March 2005 .

Key provisions of the Bill

1.2 The Bill amends the Administrative Appeals Tribunal Act 1975 (the Act) and related legislation. 1

1.3 The Explanatory Memorandum states that the aim of the Bill is to 'improve the capacity of the Administrative Appeals Tribunal (the AA T) to its workload and ensure that reviews are conducted as efficiently as possible'. The purpose behind reforms in five key areas is to:

... make the AAT more efficient, flexible and responsive to the environment in which it operates. The reforms reinforce that the primary objective of the AA T is to provide a mechanism for review that is fair, just, economical, informal and quick. 3 ·

1.4 The Explanatory Memorandum explains that the five key areas of reform are:

• Procedures - The President of the AA T is given the power to issue directions in relation to the operation of the Tribunal and the conduct of reviews. The Bill also expands the range of alternate dispute resolution processes available to the AAT.

• Removal of constitution provisions - The Bill removes the requirements restricting those members who may be appointed to the AA T for the purposes of a particular hearing. Instead, the President will have the power to determine who is to constitute the Tribunal for the purposes of

Archives Act 1983; Commonwealth Electoral Act 1918; Environment Protection and Biodiversity Conservation Act 1999; Federal Proceedings (Costs) Act 1981; Freedom of Information Act 1982; Insurance Acquisitions and Takeovers Act 1991; Insurance Act 1973; Judges ' Pensions Act 1968; Lands Acquisition Act 1989; Life Insurance Act 1995; Migration Act 1958; Military Rehabilitation and Compensation Act 2004; Narcotic Drugs Act 1967; Privacy Act 1988; Safety, Rehabilitation and Compensation Act 1988; Seafarers Rehabilitation

and Compensation Act 1992; Superannuation Act 1976; Trans-Tasman Mutual Recognition Act 1997.

2 Explanatory Memorandum, p. l.

3 ibid.

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a particular hearing, having regard to a range of factors such as expertise and experience in a relevant area.

• Use of Ordinary Members - The Bill allows the President to authorise ordinary members to exercise certain powers previously restricted to presidential and/or senior members.

• The role of the Federal Court- The Bill introduces a requirement for the President's consent to be given before a question of law may be referred to the Federal Court. The Federal Court is also given the power to make fmdings of fact in limited circ*mstances when it conducts an appeal from the AAT on a question oflaw.

• Expansion of qualification requirements for appointment as President -The Bill expands the range of qualifications for appointment as President of the AA T. At present only a Federal Court Judge may be appointed as President. The Bill provides that one of the following may be appointed President: a current or former judge of any federal court; a former judge of any State or Territory Supreme Court; or a person who has been emolled as a legal practitioner in Australia for at least five years. The Bill also replaces tenure for presidential and senior members with fixed term appointments. 4

1.5 The Bill also contains a range of measures that modernise the vocabulary of the Act and insert new headings to enhance the readability and user friendliness of the Act. Criminal offences in the Act have been redrafted in the style of the Criminal Code and their penalties updated. 5

Consultation on the Bill

1.6 The Committee understands that the Attorney-General undertook a process of consultation with stakeholders in 2004, including the release of an exposure draft of the Bill for comment. As a result of the consultation, the Attorney-General the Hon Philip Ruddock MP stated:

We received invaluable input from stakeholders and other interested parties which resulted in significant improvements to the Bill. 6

4 ibid

5 ibid, p. 2.

6 Media Release 144/2004, A More Efficient Administrative Appeals Tribunal, Attorney-Generals Department, 11 August 2004. http://www.ag.gov .au/agd!WWW /MinisterRuddockHome.nsf/Page/Media Releases 2004 Thi rd Quarter 11 August 2004 - A more efficient Administrative Appeals Tribunal -

1442004 (accessed 11 January 2005)

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Background

1.7 The AAT commenced operations in 1976. The Tribunal is an independent body that conducts merit reviews of a broad range of administrative decisions made by the Australian Government. It also reviews decisions made by some state government and non-government bodies in certain circ*mstances. Merits review of a decision involves its reconsideration by the review body. On the facts before it, the Tribunal will decide if the correct - or in a discretionary area, the preferable -decision has been made. It will affirm, vary or set aside the original decision. 7

1.8 The Tribunal consists of a President, presidential members (including Judges and Deputy Presidents), senior members and members. Currently, the President is always a judge of the Federal Court of Australia. Some presidential members are judges of the Federal Court or the Family Court of Australia. All Deputy Presidents

are lawyers. Senior members may be lawyers or have special expertise in other areas such as accountancy, actuarial work, administration, aviation, engineering, environment, insurance, medicine, military affairs, social welfare, taxation and valuation. 8

1.9 The Tribunal has jurisdiction to review decisions made under 395 separate Acts and statutory instruments. These cover areas such as Commonwealth employees' compensation, social security, taxation, veterans' entitlements, bankruptcy, civil aviation, corporations law, customs, freedom of information, immigration and

citizenship, iri.dustry assistance and security assessments undertaken by the Australian Security Intelligence Organisation.9

1.10 The Tribunal is organised into a number of Divisions as prescribed by the Act. 10 These Divisions include:

• the General Administrative Division;

• the Medical Appeals Division;

• the Security Appeals Division;

• the Taxation Appeals Division; and

• the Valuation and Compensation Division.

1.11 The Tribunal is generally one of the last avenues for those seeking administrative review. The Tribunal will usually not review a decision until an internal review has been performed by the agency that made the original decision. In

7 Administrative Appeals Tribunal(AAT) Annual Report 2003-04, p. 12.

8 AAT Annual Report 2003-04, p. 13.

9 Administrative Appeals Tribunal Homepage, About the AAT; Introduction to the AAT, p. 1 of 6, http://www .aat. gov .au/ AboutTheAA T /Introduction To TheAA T.htm (accessed 11 January 2005)

10 Subsection 19(2) of the Act.

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other cases, the Tribunal may not review a decision unless that decision has been subject to an intermediate review by a specialist tribunal. Specialist tribunals include the Refugee Review Tribunal, the Migration Review Tribunal, the Social Security Appeals Tribunal, and the Veterans Review Board. For example, a decision made in the area of social security will not be subject to review by the AAT unless it has first been reviewed by the Social Security Appeals Tribunal. 11

1.12 The Tribunal's decisions are subject to review by the Federal Court and the Federal Magistrates Court. The operations of the Tribunal are also generally subject to external scrutiny by the Commonwealth Ombudsman, through requests under the Freedom of Information Act 1982, inquiries undertaken by parliamentary committees, and audits undertaken by the Australian National Audit Office. 12

Conduct of the inquiry

1.13 The Committee advertised the inquiry in The Australian newspaper on I5 December 2004 and invited submissions by 2I January 2005. Details of the inquiry, the Bill and associated documents were placed on the Committee's website. The Committee also wrote to over 60 interested organisations and individuals inviting submissions. The Committee received I8 submissions which are listed at Appendix I. Submissions were placed on the Committee's website for ease of access by the public. The Committee held a public hearing in Sydney on I February 2005 . A list of witnesses who appeared at the hearing is at Appendix 2.

Acknowledgements

1.14 The Committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Notes on references

1.15 References in this report are to individual submissions as received by the Committee, not a bound volume. References to the Committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

11 AAT Annual Report 2003-04, p. 12.

12 ibid, p. 30.

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CHAPTER TWO

ISSUES

2.1 Most submissions to the inquiry endorsed the initiative to update the AAT, and expressed support for those provisions of the Bill that aim to improve the review process. However, a number of concerns were raised, particularly in relation to the impact that the proposed changes may have on the standing and independence of the Tribunal. This chapter addresses concerns regarding:

• the removal of the requirement that the President of the AA T must be a Federal Court judge (item 15 ofthe Bill);

• the removal of provisions allowing tenured appointment of members (item 21 of the Bill);

provisions allowing the President to remove a member from a tribunal, and to reconstitute a tribunal (item 66 of the Bill);

provisions allowing the Tribunal to request a person applying for review to amend their statement of reasons (item 95 of the Bill);

• provisions allowing the Minister rather than the Governor-General to assign members to Divisions of the Tribunal (item 36 of the Bill); and

• other provisions.

Removal of the requirement that the President of the AA T must be a Federal Court judge (item 15)

2.2 The proposed removal of the requirement that the President of the Tribunal must be a judge of the Federal Court attracted the strongest criticism from submittors and witnesses. Not one of the 17 primary submissions received by the Committee expressed support for this change, and those expressing firm opposition included significant bodies such as the Administrative Review Council (ARC) and the Law Council of Australia (the Law Council).1

2.3 At present, only a Federal Court judge may be appointed as President. 2 The Bill expands the range of qualification requirements for appointment as President to include:

• a current or former judge of any federal court;

a former judge of any state or territory supreme court; and

• a person who has been enrolled as a legal practitioner in Australia for at least five years. 3

Submissions 15 and 11 respectively.

2 Subsection 7(1) Administrative Appeals Tribunal Act 1975

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2.4 The Attorney-General's second reading speech stated that:

The pwpose of the reform is to ensure that the most appropriately qualified person occupies the position of president, regardless of whether or not they happen to be a judge of the Federal Court. 4

2.5 A representative from the Attorney-General's Department told the Committee it was the Government's view that the Federal Court judge requirement unnecessarily restricts the pool of qualified people. 5 She advised the Committee:

. .. the President has a range of functions and powers and needs to bring a range of qualities. Some of those qualities are administrative, some are to do with managing the organisation, some are to do with managing its workload and its membership, and others are to do with procedures and practices in particular matters or kinds of matters. And, yes, that mix of skills may well reside in a Federal Court judge, but it may also reside in a judge from another court-a Federal Court magistrate, for example--or

somebody who has not been appointed to the bench. 6

2.6 Many submissions, however, put forward a number of reasons why it was crucial to retain the requirement that the President be a Federal Court judge, and moreover, why it was not desirable that the President could potentially be a person with only five years of legal experience. The reasons are discussed below.

Independence

2. 7 It was put very strongly to the Committee that it was crucial that the President of the Tribunal should be, and be seen to be, independent of government. The Law Society of Western Australia submitted that the independence of the Tribunal was of particular significance, in that it was a body whose work involved the review of acts

of the executive, its agents, servants and instruments.7

2.8 The Committee took particular note of the views expressed by the ARC, a statutory body whose functions include keeping the Commonwealth administrative law system under review, monitoring developments in administrative law, and recommending to the Minister improvements that might be made to the system.

8

The

pre-eminent membership of the ARC includes the President of the Australian Law Reform Commission, the Commonwealth Ombudsman, and the President of the AAT. ARC President Mr Wayne Martin QC emphasised the importance of the independence of the AA T President, advising the Committee that:

3 Explanatory Memorandum, pp. 7-8.

4 Second Reading Speech, House Hansard, 11 August 2004, p. 32376.

5 Committee Hansard. 1 February 2005, p. 28.

6 ibid.

7 Submission 1, p. [1].

8 Section 51 of the Administrative Appeals Tribunal Act 19 7 5.

16

The President is the public face of the Tribunal and he has a vital role in organising and discharging its business. We think it is important that he or she be, and be seen to be, independent of government. 9

7

2.9 Mr Martin pointed out that a judge of the Federal Court has security of employment by nature of his or her tenured appointment (until the age of 70).10 As many submittors argued, it is the security provided by tenure that allows freedom to make decisions that may not be popular with government. 11

2.10 Part-time AA T members Dr Maxwell Thorpe and Dr John Campbell submitted that a Tribunal President who is a Federal Court judge has no direct or personal stake in the outcome other than determining a correct and fair decision. They argued that this independence at the top of the organisation can influence the Tribunal as a whole towards impartial decisions:

This [impartial] attitude toward decision-making may then be adopted by members. If this is the case, there can be no perception of bias and the Tribunal, under the stewardship of a Federal Court judge, may enjoy the respect of the community. 12

2. 11 Mr Graham McDonald, a Deputy President member of the Tribunal, submitted:

It is the independence guaranteed by having a Federal Court judge appointed which gives citizens lodging appeals against decisions of government ministers, · departmental officers and government instrumentalities the confidence that their matters will be dealt with in accordance with the highest possible quasi-judicial standards.

This is of particular importance where the decision being reviewed always involves the Government as a party. 13 (emphasis added)

2.12 The importance of the perception of independence was highlighted in a submission from constitutional specialists at Melbourne University's Centre for Comparative Constitutional Studies. They argued that under the revised requirements, there would be nothing to stop the Minister app<;>inting a relatively junior public service lawyer to the position of President. They also pointed out that there may be a perception that the appointee is subject to political pressure:

Even if the government had no intention of putting any pressure on that appointee to act in a particular manner, the appointee must be aware that,

9 Committee Hansard, 1 February 2005, p .17.

10 ibid.

11 For example, Dr Maxwell Thorpe and Dr John Campbell, part-time AAT members, Submission 4, p. [4].

12 Submission 4, p . [4].

13 Submission 10, p. [1].

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after his or her term expires, he or she will be at the mercy of the government either for reappointment or appointment to a new governmental position. Even if the appointee him or herself still intended to act with independence and integrity it is hard to see such an arrangement maintaining high levels of public confidence. 14

2.13 Several submittors argued that the independence of the President was of even greater importance if additional powers proposed for the President in other provisions of the Bill came into effect. This is particularly the case for proposed new powers relating to the composition and recomposition of tribunals, and to the removal of members. These powers are discussed in a later section of this report. ARC President Mr Martin told the Committee:

[The ARC thinks] it is very important that those powers be exercised by somebody who is both actually and perceived to be independent. 15

2.14 Other provisions of the Bill will, in effect, mean that tenured appointments to the AA T will no longer be possible, for any member of the Tribunal, or for the President. Concerns regarding this provision are discussed in detail below. The prospect of members no longer being appointed with tenure makes it all the more crucial that the President of the Tribunal be a tenured Federal Court judge, according to AA T presidential member Mr Graham McDonald:

Should the Parliament decide on the abolition of ten""e for all other appointees, it is even more imperative that the President should be independent and be seen publicly to have that independence, in order that the integrity of the Tribunal is better placed to be protected. 16

Experience and status

2.15 Another reason put forward for maintaining the requirement that the President be a Federal Court judge was the experience, knowledge and status that such a judge brings to the position. It was argued that judicial appointment provided a guarantee that the required skills and qualities would be available. The Public Interest Advocacy Centre (PIAC), for example, pointed to the extensive powers the President has over the operation of the Tribunal, and argued that:

The President's broad powers and responsibilities necessitate that the incumbent be a person of extensive legal and management experience. A Federal Court Judge is the ideal candidate as they have considerable experience as practitioners and adjudicators, and in managing proceedings. 17

14 Dr Simon Evans, Dr Carolyn Evans and Ms Anna Hood, Centre for Comparative Constitutional Studies, University of Melbourne, Submission 2, p. 9.

15 Committee Hansard, 1 February 2005, p. 17.

16 Mr Graham McDonald, Submission 10, p. 3.

17 Submission 12, p. 2.

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2.16 Other submittors echoed this opinion, including ARC President Mr Martin who emphasised the importance of the quality of decision-making that was associated with a Federal Court judge:

If the president is a judge of the Federal Court we think it more likely that he or she will be experienced in the process of weighing evidence and evaluating competing submissions in order to come to a decision. That is the essential role of the tribunal. It is also likely that he or she will be eminently legally qualified and that can be important in resolving some of the difficult questions of law that come before the tribunal. 18

2.17 The high standing and authority of a Federal Court judge was also cited as important. PIAC submitted that the appointment of a Federal Court judge as President gives the Tribunal greater status and authority. 19 The Law Council argued that a judicial appointment to the AAT President position 'removes the [AAT] from the

general body of executive decision makers and gives it status, recognition and respect'.20 Mr Mark Robinson representing the Law Council told the Committee:

That authority is respected and adhered to by all lawyers around the country and in the common law world. It is also respected, appreciated and acknowledged by all private citizens?1

2.18 It was put to the Committee that any appointment less than a Federal Court judge downgrades the Tribunal as a whole, 22 and risks a folding-back, or 'dumbing­ down' of the Tribunal.23

Coordination with the Federal Court, and relationships within the Tribunal

· 2.19 The ARC argued that having a Federal Court judge preside over the Tribunal assists coordination of matters between the Court and the Tribunal, especially where there are proceedings at both levels relating to the same subject matter? 4

The ARC

observed that:

The capacity for the same judicial officer to preside over related cases in the Court and the Tribunal can save a lot of time and the resources of both the parties and Government and avoid the risk of inconsistent decisions. Questions of law may also be referred from the Tribunal to the Court in the midst of a Tribunal review, and it is currently possible for the President of

18 Committee Hansard 1 February 2005, p. 25.

19 Submission 12, p. 2.

20 Mr Mark Robinson, Committee Hansard, 1 February 2005, p. 10.

21 ibid.

22 Law Council of Australia, Submission 15, p. [1); Other submissions echoed this point, including PIAC, Submission 12, p . 3.

23 Mr Mark Robinson, Committee Hansard, l February 2005, p. 10.

24 Submission 11 , p. 3

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the Tribunal to participate in the full Federal Court's determination of such questions. 25

2.20 The ARC also pointed to other problems that may arise within the Tribunal if a person who was not a judge was appointed President. These problems will arise as judges (for example Family Court judges) will inevitably remain as members of the Tribunal. As ARC President Wayne Martin noted:

It would seem odd ... that if there were members of the tribunal who were judges they were subject to direction by a president who was not a judge and if they were subordinate in the hierarchy of the tribunal to a president who was not a judge. That in turn might cause some concerns within the Federal Court and perhaps make it harder to get Federal Court judges to serve on the tribunal. 26

Trends in comparable jurisdictions

2.21 Another argument put forward for retaining judicial leadership of the Tribunal was that appointment of persons who were not judges would go against the trend for tribunals in comparable jurisdictions. It was pointed out that the presiding officer of comparable administrative review tribunals in Victoria, New South Wales and Western Australia is a judge. The case of the United Kingdom was also cited, with submissions observing that the proposed unified tribunals service there would have extensive judicial leadership. 27 This, it is argued, is in recognition of the critical need to maintain community confidence in the independence and impartiality of such tribunals, it also being recognised that independence should be the most important guiding principal for tribunals.28

The Committee's view

2.22 The Committee notes the very strong concerns expressed in submissions and by witnesses that the Tribunal as a whole will be downgraded if the President is not a judge, and in particular if he or she does not have the standing, authority, and independence of a Federal Court judge. The fact that a Federal Court judge has

security of tenure is an important part of his or her ability to be independent, and to be seen to be independent, of government. This independence is considered particularly vital, given that the Tribunal by its nature is one where the Government is always a party to proceedings. That fact alone makes an independent President a crucial element in maintaining the community's respect for the integrity of the Tribunal. ·

25 ibid.

26 Mr Wayne Martin QC, Committee Hansard, 1 February 2005, p. 18.

27 Dr Simon Evans, Dr Carolyn Evans and Ms Anna Hood, Centre for Comparative Constitutional Studies, University of Melbourne, Submission 2, p. 7; Administrative Review Council, Submission 11, p. 4.

28 Dr Simon Evans, Dr Carolyn Evans and Ms Anna Hood, Centre for Comparative Constitutional Studies, University of Melbourne, Submission 2, p. 5.

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2.23 Evidence presented to the Committee makes it clear that the experience, knowledge and authority brought to the position by a Federal Court judge is highly respected by all stakeholders. The Committee further notes concerns raised that the additional powers given to the President of the AA T under the Bi1129 make it all the more important that such powers have the safeguard of being placed in the hands of a Federal Court judge.

2.24 Of particular note to the Committee is the fact that not one stakeholder has expressed support for the removal of the requirement that the President be a Federal Court judge. In particular, the ARC, the body representing the peak professional and governmental expertise in this area, is opposed to this measure, despite supporting the majority of the provisions of the Bill.

2.25 The origins of this proposal remain unclear to the Committee. In contrast to other changes proposed in the Bill, this change does not arise out of the recommendations of the major reviews which have inquired into the review tribunal system. That is, the ARC's Better Decisions: review of Commonwealth Merits Review

Tribunals (1995), and the Australian Law Reform Commission's Managing Justice: a review of the federal civil justice system (2000). 30

2.26 Although the Committee recognises the argument that there may be advantages to be gained from widening the pool of those qualified for the position of President, the submissions of well-respected bodies in the legal field in Australia demonstrate that current arrangements requiring a Federal Court judge operate well, and that the current pool of qualified people is sufficient. The Committee also is not convinced that retaining the requirement that the President be a Federal Court judge would detract from the objectives of the Bill in seeking to make the Tribunal more

efficient. Indeed, there is widespread agreement that to lessen the qualifications for President would be a backward step, and would undermine the independence, reputation, and efficacy of the AAT.

2.27 Accordingly, the Committee is of the opinion that the position of President of the AAT should remain reserved for a judge of the Federal Court.

29 That is, powers to reconstitute a tribunal and to remove members from a tribunal, as per Item 66 of the Bill, as discussed in a later section of this report.

30 ARC Report no. 39, Better Decisions: review of Commonwealth Merits Review Tribunals, 1995, p. 83, Australian Law Reform Co=ission, Managing Justice: a review of the federal civil justice system, 2000.

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Recommendation 1

2.28 The Committee recommends that the Bill be amended to retain the requirement that the President of the Administrative Appeals Tribunal must be a judge of the Federal Court of Australia. That is, subsection 7{1) should not be repealed.

Removal of provisions allowing tenured appointment of members (item 21)

2.29 A further area of concern raised in submissions is the proposed replacement of tenure for presidential and senior members with fixed-term appointments. The Bill proposes to restrict the term of appointment for all members to up to a maximum of seven years, with eligibility for re-appointment.

2.30 The AAT is structured to have four classes of member, as shown in the following table. The table also shows the number of members in each class, with the number having tenure shown in brackets.

Table 2.1: AAT classes of membership

Class of member Current provisions for

tenure*

Presidential Members To 70 years of age, or at Gudges) ceasing to be a judge

Deputy Presidents To 70 years of age (if full-time)

Senior Members To 65 years of age (if full-

time)

Members No provision for tenure

Total

* Source: Administrative Appeals Tribunal Act 1975, section 8. ** Source: Attorney-General's Department, Submission 18, p. 6.

No. of members (No. with tenure)**

9 (9)

10 (2)

15 (4)

39

73 {15)

2.3 1 In his second reading speech the Attorney-General explained the rationale for removing provisions for tenured appointments:

'tenured appointments reduce the flexibility of the tribunal to respond to the changing case load'

and

22

'tenured appointments undermine the ability of government to ensure that the pool of available members corresponds with the needs of the AA T and its users.'31

13

2.32 A number of submissions argued that the removal of the ability to make tenured appointments would affect the independence, and perceived independence, of the Tribunal. Mr Graham McDonald asserted that it would 'inevitably result in a drop in public confidence that the AAT is truly independent of Govemment'.

32

Other

submittors were of the same view, including the South Brisbane Immigration and Community Legal Services (SBICLS) which expressed concern that:

With power to appoint and re-appoint applicants for ftxed terms it is possible there will be a real or perceived risk that appointees may be susceptible to governmental pressures. This has the potential to undermine the integrity of the AAT and its perceived independence.33

2.33 The Law Society of NSW, arguing against the removal of tenured appointments, emphasised the link between the security of tenure, and the independence of the Tribunal:

The security of tenure is one of the cornerstones of independence, whether for a court or tribunal, and that independence should not be compromised. 34

2.34 The Law Society of NSW also argued against any move towards equating AA T appointments with practices in the Public Service:

The term of the President, Deputy President and permanent members should not be based on practices within the public service .... The [Tribunal resolution] process requires particular skills and abilities which are not dissimilar to those of the judiciary. Confidence, discernment and tact are developed over time from dealing with the Tribunal's business. The Tribunal should not lose this expertise by limiting tenure. 35

2.35 The Law Council contended that if all future appointments to the AAT were for fixed terms only, the Tribunal as a whole would be downgraded, with the potential that its independence would be seriously underrnined. 36

The Law Council argued in

favour of maintaining the ability to make tenured appointments:

31 Second Reading Speech, House Hansard, 11 August 2004, p. 32376.

32 Submission 10, p. 1.

33 Submission 17, p. 2. Similar co=ents were made by National Welfare Rights Network, Submission 6, p. 12; Dr Maxwell Thorpe and Dr John Campbell, Submission 4, p. [5).

34 Submission 13, p. 1.

35 ibid.

36 Submission 15, p. 2.

23

14

... the Law Council ... believes that the alternative of tenured appointments to the age of 70 years should be available where appropriate in order to secure good appointments. 37

2.36 Other submissions also favoured a mix of tenured and fixed term

appointments, In expressing its opposition to removal of tenure, the Lawyers Alliance argued in particular that tenure be retained for Presidential members.38

2.37 Some submissions pointed out that the proposal for fixed-term appointments did not specify a minimum term, which left open the option to government of making very short term appointments. It was argued that short-term may further undermine public confidence in the integrity of the Tribunal.3 In addition, it was also pointed out that short-term appointments were not conducive to a build-up of knowledge and experience by members. Mr Simon Moran of PIAC told the Committee:

A minimum amount of time ... is essential for garnering the knowledge of the various pieces of legislation and the process for people to have expertise, which will be built up over time. The AA T covers a very broad variety of pieces oflegislation. To get on top not only of the Administrative Appeals Tribunal's procedures but also of that legislation, you need a minimum amount of time. 40

2.38 The suggestion that a minimum term should be specified was supported by other submittors. The Legal Services Commission of South Australia, though opposed to the abolition of tenure, argued that in the event that fixed-term appointments become law, deputy presidents and other members should have minimum terms specified (of seven and five years respectively).

41 This suggestion was by the

statement that the President should remain a judge of the Federal Court. 2

2.39 Some submissions pointed out that a consequence of lack of tenure, combined with the potential for only a short-term appointment, may be that well-qualified people would not be attracted to leave successful positions to take up office with the Tribunal.43 Ms Genevieve Bolton of the National Welfare Rights Network (NWRN) told the Committee:

Another by-product of shorter term appointments is that they are less likely to attract the high-calibre and best-qualified people to these positions, and

37 ibid.

38 Submission 8, p. 2.

39 See Legal Services Commission of South Australia, Submission 14, p. 1.

40 Committee Hansard, 1 February 2005, p . 3.

41 Submission 14, pp. 1-2.

42 ibid.

43 For example, South Brisbane Immigration and Co=unity Legal Services (SBICLS), Submission 17, p. 2

24

that will then have the effect of diminishing both the work and the value of the tribunal.

In our submission, it would be very unlikely for, say, someone who has built up a practice at the bar over a 10- or 15-year period to be attracted to a position on the tribunal where there is only the security of a two- or three­ year term. 44

15

2.40 The submission from the ARC did not oppose limited-term appointments to the AAT. 45 ARC President Mr Martin commented that there is a need to strike a balance between the competing considerations of independence on the one hand, and of accountability and efficiency on the other.46 However, Mr Martin did express the ARC's view that there should be a minimum term set, and told the Committee:

We are of the view that the balance between independence and accountability and efficiency supports the notion of limited-term appointments, but appointments have to be long enough not to jeopardise independence.47

2.41 Mr Martin referred to the ARC's previously published position in its 1995 Better Decisions report, that terms of between three and five years were appropriate for review tribunal members. 48 The ARC stated that terms of less than three years do not provide a sufficient sense of security to members.49 The Better Decisions report pointed out that terms of longer than three years may be appropriate for some senior

members, to assist with continuity and to attract the best qualified and able members. 5°

2.42 In further support of setting a mmunum term, the ARC argued that a minimum term of at least three years does not unduly hamper the ability of the Tribunal to be flexible in response to changing demands. 51

2.43 A representative of the Attorney-General's Department told the Committee that in recent times, no tenured appointments of deputy presidents or senior members have been made, and that since 1989, appointments have been for fixed terms. It was

44 Committee Hansard, 1 February 2005, p. 25 .

45 Submission 11, p . 4.

46 Committee Hansard, 1 February 2005, p. 17.

47 Committee Hansard, 1 February 2005, p. 23.

48 Submission 11 , p. 4, quoting ARC Report no. 39, Better Decisions: review of Commonwealth Merits Review Tribunals, 1995, p. 83.

49 Submission 11 , p. 4.

50 ARC Report no. 39, Better Decisions, review of Commonwealth Merits Review Tribunals, 1995, pp. 82-83.

5 1 Submission 11 , p. 4.

25

16

also advised that the majority of appointments made in 2004 were for a period of three years or more, with a small number of appointments being for less than three years. 52

2.44 The Departmental representative also argued that short term appointments were sometimes useful in that they allowed the Tribunal the flexibility to carry on its business and to deal with the exigencies of the appointments process. The example was given of a situation where a short term appointment would bridge the gap when delays in making an appointment are experienced. 53

The Committee's view

2.45 The Committee acknowledges the view expressed that the security of tenure for AA T members is one of the cornerstones of independence, and recognises concerns that the removal of provisions for tenured appointments as presidential and senior members may compromise the independence and perceived independence of the Tribunal. The Committee also notes arguments favouring the retention of a mix of tenured and non-tenured appointments.

2.46 The Committee notes the view that non-tenured appointments, and particularly short-term appointments, may result in fewer well-qualified people being attracted to leave successful positions in order to take up office with the Tribunal.

2.47 The Committee notes that for over 15 years now, only fixed term appointments have been made. As such, it could be considered that the provisions of the Bill have the effect of formalising long-term practice. However, the Committee remains concerned that there is no minimum term specified. The Committee notes that the ARC has for some time supported three to five year terms for review tribunal members, and also notes the ARC view that a minimum term of at least three years does not unduly hamper the ability of the Tribunal to be flexible in response to changing demands. Accordingly, the Committee sees merit in incorporating the specification of a minimum term into the Act.

Recommendation 2

2.48 The Committee recommends that the Bill be amended to specify a minimum term of appointment of three years. Subsection 8(3) of the Act should be amended to read: 'subject to this Part, a member holds office for a term of at least 3 years and not more than 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.'

52 Committee Hansard, 1 February 2005, p. 38.

53 ibid, p. 30.

26

17

Provisions allowing the President to remove a member from a tribunal, and to reconstitute a tribunal (item 66)

2.49 Item 66 of the Bill inserts new sections 23 and 23A (amongst others) detailing the powers of the President of the AA T regarding reconstitution of a tribunal. A number of concerns were raised in relation to these sections.

2.50 Proposed subsection 23(2)(b)(iii) authorises the President to direct that a member not continue to take part in proceedings if the President is satisfied that it is 'in the interests of justice' to do so (subsection 23(9)(a)). The President must also consult the member concerned before exercising this power. Concerns were raised that this power is too broad and subject to misuse. 54 Whilst submissions acknowledged there may be circ*mstances where it was necessary to remove a member from a tribunal, the view was expressed that the term 'in the interests of justice' was 'remarkably vague',55 and that these circ*mstances needed to be explicitly set out in the Act. 56

2.51 PIAC submitted that the reconstitution of a tribunal in the middle of proceedings may involve considerable expense and lead to delays, because the interests of justice would require a rehearing:

... if the Tribunal had to be reconstituted, the interests of justice could only be served if the new Tribunal reheard the entire proceedings ...

... the Tribunal can only make a fully informed decision if it [has] heard all of the evidence and come to its conclusion at the veracity of evidence and the credibility of witnesses. 57

2.52 Similar concerns were raised in respect of new subsection 23A(2). It confers a power on the President to reconstitute a multi-member tribunal if he or she is satisfied that it is 'in the interests of achieving the expeditious and efficient conduct of the proceeding'. The Explanatory Memorandum gives examples of when this provision might apply, including where it is necessary to add a member because of his or her

expertise, or to remove a member where expertise is not required. 58 The NWRN argued that this power is not justified, and that its inclusion risked a focus on 'economical and quick' review, rather than more important objects of 'fair and just' review.59

54 National Welfare Rights Network, Submission 6, p. 7.

55 Mr Simon Moran, Committee Hansard, 1 February 2005, p. 5.

56 National Welfare Rights Network, Submission 6, p. 7.

57 Submission 12, p. 4.

58 Explanatory Memorandum, p. 19 .

59 Submission 6, p. 7.

27

18

2.53 The Committee heard concerns that the broad reconstitution powers conferred on the Tribunal President under new sections 23 and 23A are unprecedented. After examining legislation for comparable administrative review bodies in Australia, the ARC has determined that there are several examples of provisions giving the presiding officer power to reconstitute if there is a conflict of interest,60 and one example of a provision relating to perception ofbias.61 There are also examples of provisions where a presiding officer is given rowers to reconstitute in the interests of efficiency, though these powers are qualified.6 Importantly, though, the ARC has been unable to identify any existing provision in comparable legislation that empowers a president of a tribunal to direct reconstitution 'in the interests of justice', however defined.

2.54 The ARC commented that there was a need for provisions allowing the AA T President to reconstitute a tribunal, for example in unusual cases where an AA T member had not reached a decision after a lengthy period, or where a member was guilty of misconduct. 63 The ARC expressed support for the new provisions, but made the point strongly that reconstitution powers were only acceptable where the powers were exercised by a President who was a judge of the Federal Court. ARC President Mr Wayne Martin explained to the Committee the importance of having this

safeguard:

[If the President were not a Federal Court judge] ... one has the increased spectre of the power possibly being used for political purposes.

... it is these sorts of powers that we think reinforce the need for the president to continue to be a judge of the Federal Court. In that

circ*mstance, one could have greater confidence that the power would only be exercised for the purposes for which we think it is being conferred and not for any improper purpose. 64

2.55 Other submittors supported this view. 65 The Australian Lawyers Alliance, for example, pointed out the implications for the credibility of the AAT if a tribunal member was removed by a President whose independence was perceived to be in question:

60 See ARC Submission llA for full details. Examples given are NSW Administrative Decisions Tribunal, Veterans' Review Board, Social Security Appeals Tribunal, Australian Competition Tribunal, Copyright Tribunal, existing AA T legislation, Migration Review Tribunal (MR T). 61 See ARC Submission llA for full details. The Chairperson of the Superannuation Complaints

Tribunal may reconstitute the Tribunal if he or she thinks it is desirable 'to remove any perception of bias'.

62 See ARC Submission llA for full details. The power concerns the Migration Review Tribunal, and the Refugee Review Tribunal.

63 Committee Hansard, 1 February 2005, p. 19.

64 ibid, p. 20.

65 For example, Ms Genevieve Bolton, National Welfare Rights Network, Committee Hansard, 1 February 2005, p. 24; Law Council of Australia, Submission 15, pp. 1-2.

28

The removal of a Tribunal member by a President whose appointment was publicly perceived to be political could create a scandal impugning the prestige and credibility of the AAT. 66

The Committee's view

19

2.56 The Committee is satisfied there are circ*mstances where there is a need for the President of the Tribunal to have the flexibility to reconstitute tribunals and to remove members. The Committee notes concerns raised that the potential exists for these powers to be misused, and is particularly mindful of the fact that (in the case of section 23) the only guidance given to the President in the exercise of the power to remove a member is that the removal is 'in the interests of justice', a term which is not defined.

2.57 The Committee notes that the Explanatory Memorandum lists two examples of situations that may warrant a direction by the President to remove a member from a tribunal. These are:

• where the member has a conflict of interest in the proceeding; or

• where the member has made a public statement that could prejudice the impartiality of the proceeding.67

2.58 When asked for a definition of 'the interests of justice', a representative of the Attorney-General's Department told the Committee:

I think it is that, if the situation arose where a president were considering acting under that provision, the interests of justice would need to be determined by considering the objects of the act and the range of factors that come into play in ensuring that the tribunal is able to make correct and preferable decisions and that the parties are able to obtain a proper decision

from a tribunal proceeding. 68

2.59 In responses provided to the Committee following the public hearing, the Attorney-General's Department confirmed that the term 'interests of justice' is used in a range of Commonwealth legislation in the context of powers exercised by the courts and certain statutory authorities. It is understood that, in these circ*mstances, the term is rarely defmed by the legislation. As such, what constitutes the interests of justice in a given case is invariably left to the decision-maker concerned to determine. The intention is to confer a discretion requiring the decision-maker to balance properly any competing interests so that justice is served. 69 The Department cited the examples

listed in the Explanatory Memorandum of a tribunal member having a conflict of

66 Submission 8, p. [2].

67 Explanatory Memorandum, p. 18.

68 Committee Hansard, 1 February 2005, p. 33.

69 Submission 18, pp. 3-4.

29

20

interest or perceived bias, as instances when such a balancing exercise would be required. The Department stated:

The reason for proposed paragraph 23(2)(b )(iii) is to ensure .. . that the Tribunal provides fair and just review. The provision allows the President to intervene to prevent reviews by the Tribunal that may not be fair and just or may not be seen to be fair and just. This ensures that the parties can have confidence in the Tribunal as a decision maker and removes the need for further proceedings challenging the decision in such circ*mstances. 70

2.60 The Committee remains concerned as to the lack of guidance in the Bill itself as to when the 'interests of justice' may warrant the removal of a member from a hearing. The examples listed in the Explanatory Memorandum of situations that may warrant a decision by the President to remove a member is not an exhaustive list. Further, regardless of whether the examples given in the Explanatory Memorandum are comprehensive, interpretive problems can arise when supporting information is included in an explanatory memorandum, but statutory guidance is not set out in the legislation itself. This has been a matter of note for the Committee on previous occasions when examining proposed legislation. It remains an ongoing concern for the Committee.

2.61 The Committee's view is that the Bill should be amended to prescribe the reasons why the President may direct a member to no longer t?.ke part in proceedings, with the added requirement that the President may only issue such a direction if he or she is satisfied that it is in the interests of justice to do so, for one or more of those reasons. Precedents exist in other Commonwealth legislation for this approach.71

2.62 The Committee notes the support of the ARC for the proposed reconstitution powers, but shares the ARC's concerns that the powers should only be exercised by a President who is a Federal Court judge. The Committee agrees that having a Federal Court judge as President of the AA T provides a safeguard, and sends a signal to the community that Tribunal decisions are being made with independence and integrity.

Recommendation 3

2.63 The Committee recommends that proposed subsection 23(9)(a) be amended, in order to provide guidance as to the circ*mstances under which the President should exercise the power to remove a member, and reconstitute a tribunal, 'in the interests of justice'.

Recommendation 4

2.64 The Committee recommends that new sections 23 and 23A should proceed, subject to the retention in the Act of the mandatory requirement that the President be a Federal Court judge (Recommendation 1).

70 Attorney-General's Department, Submission 18, p. [4].

71 For example, subsection 38A(2) of the Privacy Act 1988.

30

21

Provisions allowing the Tribunal to request a person applying for review to amend their statement of reasons (item 95)

2.65 This amendment allows the Tribunal to request a person applying for review to provide a further statement of reasons if the Tribunal considers the initial statement to be insufficient. According to the Explanatory Memorandum, the reason for this provision is:

... to overcome the practise of applicants submitting in their statement of reasons that there was 'error in fact and law' without further substantiation, particularly where the applicant has legal representation. 72

2.66 The Attorney-General's Department submitted that the amendment would assist the Tribunal to better manage its workload. A sufficient statement of reasons would allow decisions to be made at an earlier stage as to what type of expertise may be required on a tribunal, and whether the matter was suitable for an alternative dispute resolution process.73 The Department advised that the power to request a further statement of reasons is discretionary, and that there would be no sanction for a failure to comply with such a request.74

2.67 The Law Council expressed concern about this amendment. It submitted that the AA T was set up as an accessible forum to which anybody could apply for review of an administrative decision, and receive a fair go.75 The Law Council argued that the amendment could disadvantage applicants who do not have legal representation, and

who had trouble dealing with complex legislation. It was further argued that there is ample opportunity later in the process for refinement of an applicant's case. 76 Mr Mark Robinson representing the Law Council told the Committee:

It is a little tough to force the applicant at the start to present an analysis that is critical or is a critique of what was wrong with the original decision, particularly identifying legal errors and errors of rationality and logic. It presumes that all applicants are able to do that equally. For disadvantaged applicants, for self-represented applicants, it is a very big ask. If it needs to

be done, it can be done later at the preliminary conference or after the preliminary conference. 77

2.68 PIAC representative Mr Simon Moran echoed these concerns, arguing that:

72 Explanatory Memorandum, p. 27.

73 Submission 18, p. [5].

74 ibid.

75 Submission 15, p. [2).

76 ibid.

77 Committee Hansard, 1 February 2005, p. 8.

31

22

One of the key attributes of the tribunal is its accessibility to unrepresented applicants. This will be diminished if unrcwresented applicants face legalistic hurdles which they are unable to meet.

2.69 Both PIAC and the Law Council observed that the current approach whereby preliminary hearings are used to distil the real nature of a review works well. 79 Mr Chris Cunningham representing the Law Council argued that, although efficiency was important, it was also important that the process was fair. He told the Committee:

In practice, it is only when [the parties] actually sit around a table and discuss the issues that both parties work out exactly where they are at odds in relation to that decision. If an applicant, especially if they are an unrepresented applicant, is put to the task of reformulating something that they know is wrong but they are not sure why because they do not have the benefit of reading all the documents, getting medical evidence if necessary and all the other preliminary things that they require before they can make a value judgment, even as an applicant in person, then the system will become harsh and unfair, Pm:ticularly to unrepresented applicants before the tribunal. 80

2.70 Concerns were again raised regarding information included in the Explanatory Memorandum, but not in the Bill. PIAC suggested that if the amendment is aimed at applicants with legal representation (as is suggested in the Explanatory Memorandum), then the amendment should apply only to these applicants, and not unrepresented applicants. 81 The Law Council argued that it should be made clear in the legislation itself (and not just stated in the Explanatory Memorandum) that a request for a further statement by the Tribunal would not mean that the original application was not a valid application. 82

The Committee's view

2.71 The Committee notes the concerns raised suggesting that the amendment will place hurdles in the path of unrepresented applicants. The Committee notes the reassurance provided by the Department that there would be no sanction for a failure to provide a further statement, but remains concerned that the fact of the Tribunal making a request for further details may deter an applicant not familiar with procedures from proceeding with an application.

2. 72 The Committee also notes the benefits to the operation of the Tribunal if more informative statements of reasons are provided earlier in the process. On balance, the

78 ibid, p. 2.

79 Mr Simon Moran, Committee Hansard, 1 February 2005, p. 5.

80 Committee Hansard, 1 February 2005, p. 11.

81 Submission 12, p. 4.

82 Submission 15, p. 3.

32

23

Committee considers that the concerns raised are not sufficient to prevent the passage of the Bill.

Provisions allowing the Minister rather than the Governor-General to assign members to Divisions of the Tribunal (item 36)

2.73 Under subsection 19(3) of the Act the Governor-General assigns non­ presidential members to a particular Division or Divisions of the Tribunal, such as the Taxation Appeals Division or the Security Appeals Division. The Bill amends this arrangement so that the Minister will now make these assignments.

2.74 PIAC submitted that the independence, both actual and perceived, of the Tribunal is diminished by this amendment, and that there is no compelling reason to make such a change.83 The Australian Lawyers Alliance also questioned this amendment, stating that:

The amendment of section 19 to allow the Attorney General, rather than the Governor General, the right to move members from one division to another also represents increased political control of the work of the Tribunal. 84

2.75 The Attorney-General's Department advised that the proposed provision will facilitate faster assignments and variations of assignments because it removes a layer of formality. The Department stated that there is no particular reason why the Governor-General should be concerned with assignments, and that:

. . . [assignments] represent a level of detail more appropriately left for the Minister, in consultation with the President and other appropriate Ministers to determine. If the Minister is able to vary the assignments, it is more appropriate that the Minister make the assignments as well. Otherwise, the Minister is given a power to vary a decision of the Govemor-General. 85

The Committee's view

2.76 The Committee recognises the view of the Attorney-General's Department that the amendment removes a layer of formality in relation to assignments of members to Divisions of the Tribunal. However, the Committee also acknowledges concerns that this amendment undermines the perceived independence of the AA T.

2.77 In recognition of these concerns the Committee considers that it would be desirable to ensure, though legislation, that the Minister is obliged to consult with the President of the AAT, prior to making or altering assignments. The Committee considers that the inclusion of a tenured AA T President in the process of making

assignments to Divisions will give the public confidence that the independence of the Tribunal is being maintained. Accordingly, the Committee recommends that

83 Submission 12, p. 3.

84 Submission 8, p. [2].

85 Submission 18, p. [2].

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24

assignments to Divisions of the AA T should be made in consultation with the President of the Tribunal.

Recommendation 5

2. 78 The Committee recommends that item 36 of the Bill be amended to include the requirement that the Minister must first consult with the President before making or altering assignments of members to a Division of Divisions of the Tribunal.

Other issues

2.79 A number of other issues were raised in submissions to the inquiry, and are discussed below. These include:

• insertion in the Act of an objects statement referring to 'quick' and 'economical' (Item 1 );

• removal of the requirement that a presidential member should be part of a tribunal considering certain migration matters (Item 226);

• alternative dispute resolution provisions (Item 112);

• ordinary members to constitute multi-member tribunals (Item 4 7); and

• proposal to allow the Tribunal to limit the scope of a review (Item 73).

Insertion in the Act of an objects statement refe"ing to 'quick' and 'economical' (Item 1)

2.80 Item 1 inserts an objects statement into the Act, stating that:

In carrying out its function, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 86

2.81 It was put forward in certain submissions that the focus should be on 'fair and just', and that 'economical' and 'quick' are not appropriate objectives for the AAT. 87

2.82 The Explanatory Memorandum comments that the proposed objects statement is similar in terms to statements included in legislation for the Migration Review Tribunal, the National Native Title Tribunal, the Refugee Review Tribunal, and the Social Security Appeals Tribunal. 88 Some submissions argued, however, that reviews conducted at the level of the AAT should not be constrained by terms that apply to lower tiers ofreview.89 The NWRN submitted that:

86 Item 1 of the Bill, inserting section 2A.

87 National Welfare Rights Network, Submission 6, p. 4.

88 Explanatory Memorandum, p. 4.

89 SBICLS, Submission 17, p. 1.

34

Given the AAT's place as the final tier of external merits review for social security matters, the paramount goal of the AA T must be to reach the correct and preferable decision. In the NWRN view, the objectives of 'fair and just' are consistent with this goal whereas the objectives of 'quick and · economical' will detract from the quality of AAT review. 90

25

Removal of the requirement that a presidential member should be part of a tribunal considering certain migration matters (Item 226)

2.83 Item 226 of the Bill amends the Migration Act 1958 to repeal the provisions that the Tribunal must be constituted by a presidential member alone when conducting a review of certain decisions made by the Minister. The Explanatory Memorandum states that the removal of this requirement provides the President of the AA T with greater flexibility in constituting the Tribunal.91 PIAC submitted that the relevant migration matters (which can include significant issues such as review of certain ministerial deportation orders and the refusal of a visa) require consideration from a

highly-skilled adjudicator, and that these matters should be heard by a presidential member. 92 In addition, PIAC expressed concern that the amendment may lead to delay in Tribunal proceedings, · due to legal challenges to the President's decision on the make-up of the tribunal. PIAC argued that:

... the amendment gives the President a discretion that must be applied by considering criteria set out in the section. If an applicant believes that the appointed Tribunal lacks the expertise required by the section, they may seek to challenge the President's decision on the grounds that it did not

lawfully comply with the section. This would lead to further proceedings and delay of the Tribunal proceedings. 93

Alternative dispute resolution provisions (item 112)

2.84 The range of alternative dispute resolution (ADR) mechanisms available to the Tribunal will be expanded under the Bill. The President will have the power to direct that a proceeding be referred to an ADR process. The NWRN submitted that ADR processes are only relevant and appropriate in certain situations (for example, where ADR is optional and voluntary). 94

Ordinary members to constitute multi-member tribunals (item 47)

2.85 This amendment will remove the requirement that a multi-member tribunal be constituted by at least one presidential or senior member. This would allow multi-member tribunals to be constituted by ordinary members only. Some submittors

90 Submission 6, p. 4.

91 Explanatory Memorandum, p. 57.

92 Submission 12, p. 5.

93 Submission 12, p. 5.

94 Submission 6, p. 8.

35

26

have argued that multi-member tribunals are constituted in cases involving some complexity or significant questions of law and that the ability to resolve such issues may be lost if legally qualified presidential and senior members are not required to sit on multi-member tribunals. 95 In contrast, others argue that an increased ability to use ordinary members, where a senior or presidential member would otherwise be required, may lead to an earlier resolution of matters and may assist in a more timely and efficient resolution of cases. 96

2.86 A representative of the Attorney-General's Department provided clarification on this matter, advising that it is not currently a requirement under the Act that there be a legally qualified person on a multi-member panel. Senior members are normally legally qualified, but this is not a requirement. 97

Proposal to allow the Tribunal to limit the scope of a review (item 73)

2.87 Item 73 of the Bill clarifies that the Tribunal will have the power to determine the scope of the review of a decision. The NWRN expressed concern regarding this amendment, stating that:

On its face, this proposal appears to give the Tribunal an unfettered discretion to determine the scope of the review by placing limits on questions of fact and the evidence and issues that it will consider. If that was the intent of the proposal, it could prejudice a consuoer's case where other issues may well affect the outcome. 98

2.88 However, the NWRN goes on to note from the Explanatory Memorandum that the proposal is not intended to allow the Tribunal to limit its own jurisdiction conferred by the Act or other legislation. The NWRN suggests that it be made clear in the. legislation itself that the power is limited to evidence or issues of law and fact that are not within the Tribunal's jurisdiction. 99

The Committee's view

2.89 The Committee acknowledges the concerns raised in relation to these, and some other issues that are not discussed in this report. After careful consideration, the Committee considers that the concerns raised are not sufficient to prevent the passage ofthe Bill.

95 National Welfare Rights Network, Submission 6, p. 6; Law Council of Australia, Submission 15, p.2 of Attachment l.

96 Centrelink, Submission 16, p.4

97 Committee Hansard, 1 February 2005, p. 28.

98 Submission 6, p. 7.

99 ibid.

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Recommendation 6

2.90 Subject to the preceding recommendations, the Committee recommends that the Bill proceed.

Senator Marise Payne

Chair

37

38

ADDITIONAL COMMENTS AND POINTS OF DISSENT BY SENATOR BRIAN GREIG 1.1 The Australian Democrats welcome the recommendations of the Committee, which will improve the Bill and address a number of flaws. In particular, we strongly support the Committee's recommendation to maintain the requirement that the President of the Administrative Appeals Tribunal (AAT) must be a Federal Court Judge.

1.2 However, the Democrats would go further than the Committee has. We believe there are additional improvements which can, and should, be made to the Bill.

1.3 It is curious that the Committee has canvassed a number of concerns raised in submissions to the inquiry, yet concludes that "the concerns raised are not sufficient to prevent the passage of the Bill". This conclusion ignores the possibility of amending the Bill to address the concerns raised.

1.4 In particular, the Democrats believe that further recommendations are warranted in relation to the following issues:

Removal of provisions allowing tenured appointments of members

1.5 As the Committee has noted, the Bill proposes to restrict the term of appointment for all members up to a maximum of seven years, with eligibility for reappointment, thereby removing the possibility of tenured appointments.

1.6 The Democrats note the Government's view that "tenured appointments undermine the ability of the government to ensure that the pool of available members corresponds with the needs of the AAT and its users" and that, for over 15 years, only fixed-term appointments have been made. Nevertheless, the Democrats believe there is merit in retaining the option of making tenured appointments within the legislation.

1.7 We note the views of the Law Council of Australia, the Law Society ofNew South Wales and the South Brisbane Community Legal Service, all of which argued that the removal of tenured appointments would be likely to compromise the independence of the AA T and "inevitably result in a drop in public confidence" 1.

1.8 The Democrats welcome the Committee's Recommendation 2, that the Bill be amended to specify a minimum term of appointment of three years. However, in conjunction with this specified minimum term, we believe that the option to make tenured appointments to the AA T should be retained in the legislation.

1

Mr Graham McDonald, Submission 10, p. 1.

39

30

1.9 Retaining this option places no obligation on the Government of the day to actually make tenured appointments. Indeed, it would be entirely possible for the Government to maintain its practice of making fixed-term appointments, nevertheless we believe there is merit in retaining both options. Accordingly, the Democrats recommend that the power to make tenured appointments to the AA T be retained in the Act.

Recommendation 1

1.10 That the power to make tenured appointments to the AAT be retained in the Act.

Removal of the requirement that a presidential member should be a part of a tribunal considering certain migration matters:

1.11 The Democrats are sympathetic to the arguments advanced by the Public Interest Advocacy Centre in relation to this amendment. In particular, we agree that the relevant decisions under the Migration Act involve significant issues and require careful consideration by a legally-qualified presidential member of the AA T.

1.12 Moreover, we believe that the proposed item 226 of the Bill lacks clarity and is likely to generate confusion and delay.

1.13 For these reasons, the Democrats recommend that item 226 of the Bill be opposed.

Recommendation 2

1.14 That Item 226 ofthe Bill be opposed.

Ordinary members to constitute multi-member tribunals

1.15 The Democrats do not believe that the requirement for multi-member tribunals to include at least one presidential member should be removed from the Act. As the Law Council argues, "in the case of multi-member tribunal hearings, owing to the legal complexities usually associated with such cases," it is vital that at least one member of the tribunal is legally qualified.

1.16 Accordingly, the Democrats recommend that item 47 of the Bill be opposed.

Recommendation 3

1.17 That Item 47 of the Bill be opposed.

Senator Brian Greig

40

APPENDIX 1

ORGANISATIONS AND INDIVIDUALS THAT PROVIDED THE COMMITTEE WITH SUBMISSIONS

The Law Society ofWestem Australia

2 Centre for Comparative Constitutional Studies

3 The Law Society of South Australia

4 Dr Maxwell E. C. Thorpe and Dr John D. Campbell

5 Vietnam Veterans Association of Australia

6 National Welfare Rights Network

7 Australian Law Reform Commission

8 Australian Lawyers Alliance

9 The Law Society of the ACT

10 Mr Graham McDonald

11 Administrative Review Council

11A Administrative Review Council

12 Public Interest Advocacy Centre

13 The Law Society ofNew South Wales

14 Legal Services Commission of South Australia

15 Law Council of

16 Centrelink

17 South Brisbane Immigration and Community Legal Service Inc.

18 Attorney-General's Department

41

42

APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE

Sydney, Tuesday 1 February 2005

Public Interest Advocacy Centre

Mr Simon Moran, Principal Solicitor

Law Council of Australia

Mr Chris Cunningham, Chair, Administrative Appeals Tribunal Liaison Committee

Mr Mark Robinson, Administrative Law Committee

Administrative Law Council

Mr Wayne Martin QC, President

National Welfare Rights Network

Ms Jackie Finlay, Principal Solicitor

Ms Genevieve Bolton, National Liaison Officer

Attorney-General's Department

Ms Amanda Davies, Assistant Secretary, Administrative Law and Civil Procedure Branch

Mr Jonathon Meredith, Legal Officer, Civil Justice Division

43

44

The Senate

Legal and Constitutional Legislation Committee

Criminal Code Amendment (Trafficking

in Persons Offences) Bill 2004 (2005]

March 2005

45

© Commonwealth of Australia 2005

ISBN 0 642 71497 5

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra

46

MEMBERS OF THE LEGISLATION COMMITTEE Members

Senator Marise Payne, Chair, LP, NSW Senator the Ron. Nick Bolkus, Deputy Chair, ALP, SA Senator Brian Greig, AD, W A* Senator Joseph Ludwig, ALP, QLD Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member

* Senator Aden Ridgeway, AD, NSW to replace Senator Brian Greig for matters relating to the Indigenous Affairs portfolio

Participating Members

Senator the Ron. Eric Abetz, LP, T AS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, WA Senator George Brandis, LP, QLD Senator Geoff Buckland, LP, QLD

Senator Bob Brown, AG, TAS Senator George Campbell, ALP, NSW Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Ron R Colbeck, LP, T AS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, W A Senator Christopher Evans, ALP, WA Senator the Ron. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Rarradine, IND, TAS

Secretariat Mr Owen Walsh Secretary

Senator John Rogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Linda Kirk, ALP, SA Senator Susan Knowles, LP, W A Senator Kate Lundy, ALP, ACT Senator Ross Lightfoot, LP, WA Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NPA, VIC Senator Jan McLucas, ALP, QLD SenatorS Mackay, ALP, TAS Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator the Ron. Nick Sherry, ALP, TAS Senator Ursula Stephens, ALP, NSW Senator Aden Ridgeway, AD, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Tierney, LP, NSW Senator John Watson, LP, TAS

Ms Kelly Paxman Ms Sophie Power Ms Marina Seminara

Principal Research Officer Principal Research Officer Executive Assistant

Suite Sl.61 Parliament House

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au iii

47

48

TABLE OF CONTENTS

MEMBERS OF THE LEGISLATION COMMITTEE ................................ iii

RECOMMENDATIONS ................................................................................. vii

ABBREVIATIONS ............................•............................................................... ix

CHAPTER 1 ...•......................................................•..•.......................................... 1

INTRODUCTION .................................................................................................... !

Background ..................................................... .. .......... ... .............................. ........... 1

Overview of the Bill .... .. ......... .. ............................................................. ........... ...... l

Conduct of the inquiry ... ... ... ........................................ ....................... .................... 4

Acknowledgement ................ ...... ... .. ................................. ... ... ........................ ........ 4

Note on references .................... ..... .. .............. .. .......... ................................ ............. 4

CHAPTER 2 .••••.........••.•..•.••...••.•....•••••.•••...•.••.•.•..••..•.........•...•......•.••.••.•.••.•...•.... 5

ISSUES RAISED IN RESPECT OF THE BILL ....•.........•............•....•••............•... 5

Implementation of the Protocol .............................................................................. 5

Discrepancies with domestic criminal law principles ..... .. .... ............................... 23

CHAPTER 3 ...................................................................................................... 29

OTHER ISSUES ...•..•••.....•....••.•.•.....•.•.•••.....••............•......................•..................... 29

Consultation ................ .. .............. ......... ........ ... ..................................... ..... ............ 29

Access to justice for victims of trafficking .................. ........... ............................. 3 3

Victim support ... ... ... ..... ............................. ................ ................. .. ... .......... .......... . 37

Alternative legislative approaches .. ... .................... .......... ..................................... 42

APPENDIX 1 ..................................................................................................... 45

ORGANISATIONS AND INDIVIDUALS THAT PROVIDED THE COMMITTEE WITH SUBMISSIONS ................................................................ 45

v

49

APPENDIX 2 ..................................................................................................... 47

WITNESSES WHO APPEARED BEFORE THE COMMITTEE ................... 47

Sydney, Wednesday 23 February 2005 ........... ............. .... ............. ...... ..... ....... ..... 47

VI 50

RECOMMENDATIONS

Recommendation 1

2.12 The Committee recommends that proposed subsections 271.2(1) and 271.5(1) of the Bill be amended to remove any reference to the consent of victims.

Recommendation 2

2.16 The Committee recommends that proposed subsections 271.2(1) and 271.5(1) be amended to include in the trafficking offences an element of a purpose of exploitation.

Recommendation 3

2.30 The Committee recommends that proposed sections 271.2 and 271.5 be amended to remove any doubt that they apply to each of the means of trafficldng listed in the definition of 'trafficking in persons' contained in Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, Supplementing the United Nations Convention Against Torture, United Nations, 2000.

Recommendation 4

2.31 The Committee recommends that proposed subsection 270.7(1) be amended to include an express reference to deception about the nature of sexual services a person will be required to provide and to deception about the quantum of any debt or purported debt owed or which will be owed by the person.

Recommendation 5

2.32 The Committee recommends that proposed sections 271.2(2) and 271.5(2) be amended to include an express reference to deception about:

• the nature of sexual services a person will be required to provide;

• the quantum of any debt or purported debt owed or which will be owed by the person;

• the extent to which the person will be free to leave the place or area where the person provides sexual services;

• the extent to which the person will be free to cease providing sexual services; and

• the extent to which the person will be free to leave his or her place of

residence.

Recommendation 6

2.52 The Committee recommends that the Bill be amended to adopt the definitions of the 'trafficking in persons' and 'exploitation' contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against

Torture, United Nations, 2000 As mentioned above, the Committee also

vii 51

recommends that the trafficking offences be amended to include an element of a purpose of 'exploitation'.

Recommendation 7

2.53 The Committee recommends that proposed sections 271.2, 271.4, 271.5 and 271.7 be amended to remove any doubt that they apply to non-commercial sexual exploitation.

Recommendation 8

2.54 The Committee recommends that the definition of 'exploitation' in the Bill be amended to include an express reference to servile marriages.

Recommendation 9

2.63 The Committee recommends that the definition of 'debt bondage' in Item 10 of the Bill be amended to include a reference to exploitative contracts that impose excessive up front contract amounts and which are manifestly unfair.

Recommendation 10

2.88 The Committee recommends that the Bill should be amended to include in Division 270 of the Criminal Code the same definition of 'deceive' that the Bill currently includes in proposed Division 271.

Recommendation 11

3.20 The Committee recommends that the provisions of the Bill be subject to ,. further and wider consultation, including with State and Territory governments.

Recommendation 12

3.21 The Committee recommends that in the process of consulting State and Territory governments, the Bill also be referred to the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General for comment.

Recommendation 13

3.40 The Committee recommends that the Bill be amended to ensure that Part lAD of the Crimes Act 1914 applies to offences against the proposed Division 271 of the Criminal Code inserted by the Bill.

Recommendation 14

3.63 Subject to the preceding recommendations, the Committee recommends that the Bill proceed.

viii 52

the Action Plan

AFAO

AFP

the Bill

the Castan Centre

CATWA

Crimes Act

the Criminal Code

DIMIA

HREOC

the Law Council

MCCOC

the Protocol

PJCACC

SCOT

SSP AN

UNICEF

UN

ABBREVIATIONS

Action Plan to Eradicate Trafficking in Persons

Australian Federation of AIDS Organisations

Australian Federal Police

Criminal Code Amendment (Trafficking in Persons Offences) Bill2004

Castan Centre for Human Rights Law

Coalition Against Trafficking in Women Australia

Crimes Act 1914

Criminal Code Act 1995

Department of Immigration and Multicultural and Indigenous Affairs

Human Rights and Equal Opportunity Commission

Law Council of Australia

Model Criminal Code Officers Committee

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Torture, United Nations, 2000.

Parliamentary Joint Committee on the Australian Crime Commission

Standing Committee on Treaties

Sexual Service Providers Advocacy Network

United nations International Children's Emergency Fund

United Nations

ix 53

54

CHAPTER!

INTRODUCTION

Background

1.1 On 9 February 2005, the Senate referred the provisions of the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 [2005] to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 7 March 2005 . On 7 March 2005, the Senate agreed to extend the reporting date for this inquiry to

10 March 2005.

Overview of the Bill

1.2 The Bill is part of the Government's response to issues ansmg out of trafficking in persons, and aims to fulfil Australia's legislative obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Protocol). The Protocol supplements the United Nations Convention against Transnational Organised Crime. The Protocol's purpose

is to prevent and combat trafficking in persons and facilitate international cooperation against such trafficking. It aims to maintain a balance between law enforcement and victim protection. The Trafficking Protocol came into force on 25 December 2003. At present, the Protocol has 117 signatories and 76 parties. The Explanatory Memorandum explains that passage of the Bill, combined with other measures already

in place, will permit Australian ratification of the Protocol. 1

1.3 As explained below, the Bill inserts new Division 271 into the Criminal Code Act 199 5, creating new trafficking and debt bondage offences. 2

Trafficking persons into Australia

(i) Offence of trafficking persons into or within Australia

1.4 Proposed subsection 271.2(1) creates an offence of trafficking persons into Australia where the entry into Australia is accomplished by the use of threats or force which causes the victim to consent to the entry. Absolute liability applies to one element of the offence--that the use of threats or force results in the victim consenting to being brought to Australia. 3

Explanatory Memorandum , p. 1.

2 The overview of the Bill is drawn from the Bills Digest prepared by the Parliamentary Library in respect of the Bill. See Bills Digest No. 96, 2004-05.

3 This aspect of the offence is discussed in detail at paragraphs 2.74 to 2.76 of this report.

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2

1.5 Proposed subsection 271.2(2) creates an offence where a person's entry into Australia occurs as the result of deception about the fact that their stay will involve the provision of sexual services, exploitation, debt bondage or the confiscation of their travel or identity documents. The maximum penalty for either offence is 12 ·years imprisonment.

1.6 Proposed section 271.5 creates a similar offence of trafficking concerning the organisation or facilitation of the transportation of persons from one place in Australia to another place in Australia.

(ii) Aggravated offence of trafficking of persons into Australia

1. 7 Proposed subsection 271.3 creates an aggravated offence, with a maximum penalty of 20 years imprisonment if a person commits the proposed section 271 .2 offence and:

the offender intends that the victim will be exploited after entering Australia

the offender subjects the victim to cruel, inhuman or degrading treatment, or

the offender recklessly subjects the victim to a danger of death or serious harm.

(iii) Offences of trafficking children into or within Australia

1.8 Proposed section 271.4 creates an offence of trafficking where the victim is under 18 years of age and the offender organises the victim's entry into Australia and intends or is reckless about whether the victim will be used to provide sexual services or otherwise exploited after entering Australia. The maximum penalty for this offence is 20 years imprisonment.

1.9 Proposed section 271.7 creates a similar offence of trafficking concerning the organisation or facilitation of the transportation of children from one place in Australia to another place ·in Australia.

Debt bondage

1.10 Proposed section 271.8 creates an offence of debt bondage where a person intentionally causes another person to enter into debt bondage. The maximum penalty is imprisonment for 12 months.

1.11 'Debt bondage' is defined in the Bill as occurring when a person pledges his or her services or the services of another person as security for a debt if the reasonable value of those services is not applied to repay the debt or if the length and nature of the services is not defined.

1.12 Admissible evidence in a debt bondage prosecution can include the economic relationship between the parties, the terms of any agreement between them, and the personal circ*mstances of the alleged victim (including their ability to speak English and the extent of their social and physical dependence on the alleged offender).

56

3

1.13 Proposed section 271.9 creates an offence of aggravated debt bondage. It will occur if the offender commits an offence of debt bondage and the victim is under 18 years of age. The maximum penalty is imprisonment for 2 years. In order for a person to be convicted of this aggravated offence, the prosecution must prove that the defendant intentionally committed or was reckless about committing the offence against a person under the age of 18.

Deceptive recruiting for sexual services

1.14 Item 7 of the Bill replaces the existing offence of deceptive recruiting for sexual services in subsection 270.7(1) of the Criminal Code with a reworded offence. The new offence will cover a wider range of circ*mstances in which deceptive recruiting can occur. For instance, not only will deceptive recruiting occur when the victim is deceived about the fact that they will be required to provide sexual services but the offence will also occur if the person is deceived about other matters, such as the extent to which they will be free to leave the place where they provide sexual services, the extent to which they will be free to cease providing sexual services or the extent to which they will be able to leave their place of residence.

Jurisdictional requirements

1.15 Proposed section 271.10 provides that extended geographical jurisdiction (category B) applies to the offences of people trafficking into Australia and debt bondage. This means that the offences apply to conduct by Australian citizens or bodies corporate anywhere in the world, subject to a foreign law defence.

1.16 The extended geographical jurisdiction is also applied to existing sexual servitude and deceptive recruiting offences by the Bill.

Jurisdictional requirements for the domestic trafficking offences

1.17 For constitutional reasons, these offences must be tied to specific heads of Commonwealth power. Proposed section 271.11 therefore provides that the domestic trafficking offences will be activated if: any of the conduct occurs outside Australia; the conduct involves transportation across State borders for reward; the conduct

occurs within a territory; is engaged in by a constitutional corporation; some of the conduct makes use of a postal, telegraphic or telephonic service; or the victim is an alien.

Amendment of the Telecommunications (Interception) Act 1979

1.18 The Bill also amends the Telecommunications (Interception) Act 1979 so that telecommunications interception warrants will be available for the investigation of the new people trafficking offences and for all the people smuggling offences in Division 73 of the Criminal Code.

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4

Conduct of the inquiry

1.19 As mentioned above, the Bill was referred to the Committee on 9 February 2005. Details of the inqui.ty, the Bill and associated documents were immediately placed on the Committee's website. The Committee wrote to over 100 organisations and individuals to invite submissions by 17 February 2005. The Committee also advertised the inqui.ty in The Australian newspaper on 16 February 2005 .

1.20 The Committee received 18 submissions, and these are listed at Appendix 1. Submissions were placed on the Committee's website for ease of access by the public.

1.21 The Committee held a public hearing in Sydney on 23 February 2005. A list of witnesses who appeared at the hearing is at Appendix 2 and copies of the Hansard transcript are available through the Internet at http://aph.gov.aulhansard.

Acknowledgement

1.22 The Committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.23 References in this report are to individual submissions as received by the Committee, not to a bound volume. References to the Committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

58

CHAPTER2

ISSUES RAISED IN RESPECT OF THE BILL

2.1 The overwhelming majority of submissions to the inquiry supported the Government's proposal to ratify the Protocol and to criminalise human trafficking. However, submissions also raised two broad sets of concerns with respect to the Bill: that it failed to implement the requirements of the Protocol and that it contained a number of discrepancies with respect to domestic criminal law. This chapter of the report examines these two issues.

Implementation of the Protocol

2.2 The stated rationale for the Bill is to criminalise comprehensively every aspect of trafficking in persons and thereby fulfil Australia's obligations under Protocol. Passage of the Bill, combined with measures already in place, is intended to allow Australian ratification of the Protocol in the near future. 1

The requirements of the Protocol

2.3 Article 5(1) of the Protocol will require Australia as a State Party to :

. . . adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.

2.4 The conduct to be criminalised is described in Article 3 as 'trafficking in persons'. It comprises:

. . . the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2

2.5 It was put to the Committee that three elements must therefore be made out in order for the proscribed activity- 'trafficking in persons'- to occur. 3

These are:

• An action consisting of recruitment, transportation, transfer, harbouring or receipt of persons.

Explanatory Memorandum, p. 1. See also Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs, Senate Hansard, 8 December 2004, p.2

2 Article 3(a) of the Protocol.

3 HREOC, Submission 9A, p. 5; HREOC, Committee Hansard, 23 February 2005 , p. 3.

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6

• That action is undertaken by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

That action is undertaken for the purpose of 'exploitation'. Article 3(a) of the Protocol provides that:

'exploitation' shall include, at a mmunum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

2.6 There must be no requirement to establish the existence of any of the above-mentioned means where a child is involved.4 Article 3(c) of the Protocol expressly provides that:

the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the [above-mentioned] means.

2.7 The Protocol also states that the consent of a victim of 'trafficking in persons' to the intended exploitation must be irrelevant where any of the means listed in Article 3(a) have been used.5

Concerns that the Bill is inconsistent with the Protocol

2.8 Submitters argued that the Bill, as currently drafted, fails to comply with or satisfy the above-mentioned requirements of the Protocol and, as such, Australia's obligations under that Protocol. 6 A consequence, it is argued, is that the Bill fails to appropriately capture and criminalise all aspects of trafficking in persons. Amendments to the Bill have therefore been suggested. These arguments are considered below.

The consent of victims made an issue?

2.9 Concerns have been raised that the proposed offences of trafficking by force or threat require the prosecution to prove - and therefore the defence to disprove - that the force or threats of the accused resulted in consent on the part of the victim. 7

That

is, that the victim's consent will in effect be made an issue before the court. This, it is

4 Article 3(c) of the Protocol. A 'child' is defmed in Article 3(d) for the purposes of the Protocol to mean any person under eighteen years of age.

5 Article 3(b) of the Protocol.

6 See, for example, HREOC, Submission 9, p.2 and World Vision, Submission 12 , pp.3-4. 7 That is, an element of the proposed trafficking offences in proposed sections 271 .2 and 27 1.5 is that the defendant's use of force or threats must result in the defendant obtaining the victim's consent to their entry or receipt into, or transport within, Australia.

60

7

argued, is at odds with the above-mentioned requirement of the Protocol that the consent of the victim shall be irrelevant in such cases. 8 The Coalition Against Trafficking in Women Australia (CATWA), for example, criticises this approach as placing the onus on the victims of trafficking to prove that they have been forced into trafficking instead of targeting the action of the traffickers. 9 Witnesses argued that the element of the victim's consent should therefore be removed from the offences. 10

Response of the Attorney-General's Department

2.10 The Attorney-General's Department maintained that the Bill is consistent with the Protocol's requirement that the consent of the victim to the 'intended exploitation' should be irrelevant. It explained that:

The victim's consent to the trafficking activity does not provide an excuse or defence for the trafficker. The key issue for the prosecution to establish is the use of force or threats by the offender to obtain the victim 's consent to the activity. Subsection 271.2(1) creates an offence where the victim's consent 'to the entry into Australia' is obtained by force or threats. The

offence will be made out where the victim consented to participate in forced labour on arrival in Australia, provided the victim's consent to come to Australia was obtained through the use of force or threats. 11

The Committee's view

2.11 The Committee shares the concern of witnesses that the offences as currently framed put the consent of victims in issue before a criminal court. In its view, this is inconsistent with the requirements of the Protocol. Moreover, it appears unnecessary. See in this regard the other recommendations of the Committee listed below. The Committee therefore recommends that the references to consent of victims be omitted.

Recommendation 1

2.12 The Committee recommends that proposed subsections 271.2(1) and 271.5(1) of the Bill be amended to remove any reference to the consent of victims.

Failure to specify an exploitative purpose?

2.13 Concerns were raised over the apparent failure to include the element of exploitative purpose in the proposed trafficking offences. 12 This, it is suggested, is

8 See, for example, HREOC, Submission 9, pp. 4-5; World Vision, Submission 12, pp. 3-4; Project Respect, Submission 6, Attachment, pp.8, 10.

9 CA TWA, Submission 13, p. I 10 See, for example, HREOC, Submission 9, p. 5.

11 Submission 17 A, pp. 6-7.

12 See proposed subsections 271.2(1) and 271.5(1). The elements of the trafficking offence in proposed subsection 271.2(1), for example, are : (i) the defendant organises or facilitates the entry, proposed entry or receipt of another person into Australia; (ii) the defendant uses force

61

8

inconsistent in that other proposed offences in the Bill implicitly or expressly include such a requirement. 13 Moreover, it means that the application of the proposed trafficking offences extend well beyond people trafficking and into people smuggling - an activity already prohibited by other Commonwealth legislation. 14 This blurring of people trafficking with people smuggling is seen as undesirable. 15 As the Human Rights and Equal Opportunity Commission (HREOC) argued, an exploitative purpose:

is an essential component of the definition of trafficking in the trafficking protocol. Its omission means that these offences have an uncertain scope extending to circ*mstances outside the internationally accepted definition of 'trafficking'. That lack of certainty may undermine public confidence in the new offence regime and thus actually harm the government's efforts to raise awareness of the problems associated with trafficking. 16

Response of the Attorney-General's Department

2.14 In view of the above, the Committee asked the Attorney-General's

Department why the new trafficking offences did not require that the conduct be for the purpose of exploitation whereas other offences - such as the proposed trafficking in children offences - do. The Department's response was as follows:

The elements of these offences are different. The general trafficking offences in section 2 71.2 require either the use of force or threats, or the use of deception about certain matters, including that the victim will be exploited. These offences are available whether the victim is a child or an adult. The trafficking in children offence in section 271.4 does not require the prosecution to prove that the offender threatened the child, used force against the child, or deceived the child. In addition, whether the child

'consented' to the conduct is irrelevant to the offence. It is only necessary to prove that the offender intended or was reckless as to the fact that the child would be used to provide sexual services or otherwise exploited. 17

or threats; and (iii) that use of force or threats results in the defendant obtaining the other person's consent to that entry, proposed entry or receipt. The provision does not require that the entry, proposed entry or the receipt of another person into Australia be for one or more of the forms of'exploitation' listed in Article 3(a) of the Protocol.

13 HREOC, Submission 9, page 5. The deception offences in proposed sections 270.7(1) and 271.2(2) require that a person must be deceived about matters which would fall with the definition of'exploitation' in Article 3(a) of the Protocol'. Similarly, the new trafficking in children offences in proposed section 271.4 require, among other things, proof of recklessness or an intention on the part of the defendant that the child 'will be used to provide sexual services or be otherwise exploited'.

14 See Division 73 of the Criminal Code and Division 12 of the Migration Act 1958 (Cth).

15 HREOC, Submission 9, pp. 4-6. World Vision, Submission 12, p. 12 of Attachment.

16 Mr Lenehan, Committee Hansard, 23 February 2005, p. 2.

17 Submission 17 A , p. 6.

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9

The Committee's view

2.15 After careful consideration, the Committee considers that the concerns raised by witnesses, including HREOC and World Vision, carry some weight. The Committee was unable to be persuaded that the proposed trafficking offences, as currently drafted, merely meet the requirements of the Protocol. The Committee remains unaware of any cogent justification for these offences' application to circ*mstances outside the internationally accepted definition of 'trafficking'. It is also concerned at the potential for such widely cast criminal offences to have unintended consequences. The Committee therefore recommends that the relevant offences be amended to require that the conduct to be proscribed be undertaken for the purpose of exploitation. As mentioned below, the Committee also considers that 'exploitation' should be defined in the same terms as it appears in the Protocol.

Recommendation 2

2.16 The Committee recommends that proposed subsections 271.2(1) and 271.5(1) be amended to include in the trafficking offences an element of a purpose of exploitation.

Not all means of trafficking covered?

Means other than force, threats or deception not covered?

2.17 The proposed offences of trafficking in persons will criminalise organising or facilitating the entry, proposed entry or receipt of another person into Australia, or transportation within Australia, by means of force, threat or deception about certain matters. 18 The Bill also extends the scope of the existing section 270.7 of the Criminal Code which criminalises deceptive recruiting for sexual services.

2.18 Submitters acknowledge that the above will go some way to satisfying the obligations of the Protocol. However, they noted that, while force, threat or deception may be significant techniques used by traffickers, they are not the only techniques or 'means' of trafficking that are used and therefore to be prohibited under Article 3 of the Protocol. 19 As Project Respect stated:

[any] legislation which seeks to embrace the UN Trafficking Protocol, and address all forms of trafficking in persons, needs to address the myriad of ways in which traffickers recruit, transport, harbour and receive persons. 20

18 See proposed sections 271.2 and 271.5 in the Bill.

19 The means of trafficking prohibited under the Protocol are listed in paragraph 2.5 above.

20 Submission 6, Attachment, p. 10.

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2.19 In contrast, it was noted that the Bill did not expressly address the following means of trafficking which are listed in Article 3(a) of the Protocol:

• other forms of coercion;

• the abuse of power or of a position of vulnerability; and

• the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.21

All forms of deceptive recruitment covered?

2.20 As mentioned above, the Bill amends subsection 270.7(1) of the Criminal Code to widen the offence of deceptive recruitment for sexual services. The Explanatory Memorandum explains that:

... section 270.7 does not address the situation where a person knows he or she will be working in the sex industry but is deceived about the exploitative conditions of that employment. . . . The amended offence [therefore] includes deception about the conditions under which sexual services are to be provided. 22

2.21 Subsection 270.7(1) will therefore be amended to apply expressly to deception about:

• the fact that the arrangement will involve the provision of sexual services;

• the extent to which the person will be free to leave the place or area where the person provides sexual services;

• the extent to which the person will be free to cease providing sexual services;

• the extent to which the person will be free to leave his or her place of residence; and

• the fact that the engagement will involve exploitation, debt bondage or the confiscation of the person's travel or identity documents.

21 HREOC, Submission 9, p. 4; CATWA, Submission 13 , p.l

22 Explanatory Memorandum, p.4.

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2.22 However, it was put to the Committee that the amended offence fails to cover all the required forms of deception. 23 That is, none of the matters listed in the above paragraph cover deception about:

the nature of sexual services a person will be required to provide; and

the quantum of any debt or purported debt owed or which will be owed by the person in connection with the engagement.

2.23 Submissions referred to the Parliamentary Joint Committee on the Australian Crime Commission (PJCACC) recent recommendation that it is essential that such deception be clearly crirninalised. 24 Deception is a significant technique used by traffickers. Evidence presented to the PJCACC confirmed that the majority of deception that occurs in trafficking of sex workers relates to the size of the debt that trafficked workers must repay, the number of clients they must see and the range of

sexual services they must provide.25

2.24 Similar concerns were raised in respect of proposed deceptive trafficking offences in subsections 271.2(2) and 271.5(2)?6 That is, that they also failed to cover deception about the nature of sexual services to be provided and the quantum of any debt or purported debt.

2.25 Submitters also highlighted an apparent inconsistency between the Bill's deceptive offences and its deceptive recruiting offences in respect of the extent of deception. 7 Proposed subsection 271.2(2) makes it an offence to organise or facilitate the entry etc into Australia where there is deception about the fact that the entry etc will involve the provision of sexual services, exploitation, debt bondage or the confiscation of travel or identity documents. Proposed subsection 271.5(2) creates

a similar offence in respect of domestic trafficking. However, neither provision includes deception about the matters listed in proposed section 270.7. That is, the extent to which the person will be free to:

23 HREOC, Submission 9, pp. 2-3; Western Australian Police Service, Submission 11, p. 2; Project Respect, Submission 6, Attachment, p.4. See also Catholic Woman's League argued Inc. Submission 14, p.3. The Catholic Woman's League argued that the definition of'sexual servitude' should be amended to protect women who consent to work in the sex industry, but

who are deceived about the conditions of work. See also Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

24 See, for example, HREOC, Submission 9, p.3 and Ms Fairfax, World Vision, Committee Hansard at p. 25 . Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

25 Parliamentary Joint Committee on the Australian Crime Commission, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 51-53 .

26 HREOC, Submission 9, p. 3.

27 HREOC, Submission 9, p. 3; Project Respect, Submission 6, Attachment, p. 7.

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• leave the place or area where the person provides sexual services;

cease providing sexual services; or

• leave his or her place of residence.

Response of the Attorney-General's Department

2.26 The Department argued at the hearing that the three alternative means of trafficking listed in the Bill - force, threats and deception - would cover the field in respect of what is required by the Protocol. 28 That is, force or threat would cover trafficking by means of 'other forms of coercion', 'abuse of power or of a position of vulnerability' or 'the giving or receiving of payments or benefits to achieve the consent of a person having control over another person'. 29 The Department did note, however, that it would depend in each case on the exact issues presented to the court.

2.27 The Committee put to the Department the specific concerns of witnesses that the Bill did not address all forms of deceptive recruitment. The Department's response was as follows:

The new trafficking in persons offences in section 271 cover deception as to the fact that the entry, receipt or arrangements for the victim's stay in Australia will involve the provision of sexual services, exploitation, debt bondage or the confiscation of the person's travel or identity documents ... . The amended offence [ie, section 270.7] will apply where the perpetrator deceives a victim about the way they will be required to perform their job .

. . . This will ensure perpetrators are not able to impose work conditions on the victim that are unacceptable to that person. Nor will perpetrators be able to force a victim to do one type of work when they agreed to do work of a completely different nature . . . The new debt bondage offences are

[also] available in any circ*mstance where contracts for personal services are exploitative and deception as to the quantum of a debt or purported debt would be a relevant consideration in determining whether such circ*mstances existed. 30

2.28 In its response to questions from the Committee, the Attorney-General's Department agreed that the new offences in proposed section 271 were inconsistent with the amended deceptive recruiting offence in section 270 and should be amended to ensure deception as to each of the elements listed in para. 2.23 above is covered.

It is agreed that the new offences in proposed section 271 do not directly align with the amended deceptive recruiting offence in section 270 and that

28 Committee Hansard, 23 February 2005, p. 44. See also Submission 17, p.7

29 Proposed section 271.1 will provide that 'threat' includes a threat of force, removal from Australia, or 'a threat of any other detrimental action', unless there are reasonable grounds for that threat.

30 Submission 17 A, pp. 1-2. The Attorney-General's Department also noted that these amendments were the Government's response to the recommendations of the PJCACC mentioned in paragraph 2.23 above.

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an amendment to ensure deception as to each of these elements is covered in both sections may be appropriate.31

The Committee's view

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2.29 On balance, the Committee is not persuaded that the concerns raised by witnesses are appropriately addressed by the Bill. The legislation which seeks to implement the Protocol should clearly and unambiguously address all means by which traffickers recruit, transport, harbour and receive their victims. As was stated by the Minister, 'Australia has a moral obligation to ensure that it has every possible measure in place to fight the trade in human beings. az

Recommendation 3

2.30 The Committee recommends that proposed sections 271.2 and 271.5 be amended to remove any doubt that they apply to each of the means of trafficking listed in the definition of 'trafficking in persons' contained in Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and

Children, Supplementing the United Nations Convention Against Torture, United Nations, 2000.

Recommendation 4

2.31 The Committee recommends that proposed subsection 270.7(1) be amended to include an express reference to deception about the nature of sexual services a person will be required to provide and to deception about the quantum of any debt or purported debt owed or which will be owed by the person.

Recommendation 5

2.32 The Committee recommends that proposed sections 271.2(2) and 271.5(2) be amended to include an express reference to deception about:

• the nature of sexual services a person will be required to provide;

• the quantum of any debt or purported debt owed or which will be owed by the person;

• the extent to which the person will be free to leave the place or area where the person provides sexual services;

• the extent to which the person will be free to cease providing sexual services; and

• the extent to which the person will be free to leave his or her place of residence.

31 Submission 17 A, p. 1.

32 Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs, Senate Hansard, 8 December 2004, p. 2 .

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Not all forms of exploitation covered?

2.33 Another concern raised in submissions was the apparent failure of the Bill to cover adequately all the forms of exploitation contemplated by the ProtocoL 33 The Protocol defmes exploitation to mean 'at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs' (emphasis added). As acknowledged by World Vision, this inclusive definition reflects the fact that:

Trafficking is a dynamic global crime and anti-trafficking laws need to be flexible and broad enough to capture changing illicit markets and practices. 34

2.34 In contrast, the Bill only defmes 'exploitation' in terms of 'slavery', 'forced labour' or 'sexual servitude'. 35 The Bill and the Criminal Code then set out what shall constitute 'slavery', 'forced labour' or 'sexual servitude':

• 'Slavery' is defined essentially as the condition of exercising the power of ownership over another person. 36

• 'Forced labour' is the condition of a person who provides labour or services (other than 'sexual services') and who, because of the use of force or threats, is not free to cease providing labour or services or to leave the place at which the labour or services are provided. 37

• 'Sexual servitude' is defined as being limited to the provision by a person of 'sexual services'. 38

• 'Sexual services', for the purposes of the above, is defined in tum to mean the commercial use or display of the body for the sexual gratification of others.39

Failure to cover non-commercial sexual exploitation, especially of children

2.35 This approach, it is claimed, does not adequately capture non-commercial sexual exploitation (that is, forms of sexual exploitation which are not paid for) as is

33 See, for example, World Vision, Submission 12, pp. 8-9 and 13- 15 of the Attachment.

34 Ibid., p. 8.

35 Item 11 of the Bill inserts into the Criminal Code a definition of'exploitation' which provides that 'exploitation' shall be taken to occur where an exploiter's conduct causes a victim to enter into slavery, forced labour or sexual servitude. This definition also refers to organ removal which is not relevant to the discussion on this point.

36 Section 270.1 of the Criminal Code.

37 See Items 12 and 13 of the Bill and subsection 73 .2(3) of the Criminal Code.

38 See Dictionary and section 270.4 of the Criminal Code.

39 See Item 15 of the Bill.

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required by the Protocol. 40 That is, non-commercial exploitation is not caught by the definition of 'sexual servitude', which is limited to sexual exploitation for a commercial purpose. Moreover, non-commercial sexual exploitation may not always fit neatly within the specific defmitions of 'slavery' or 'forced labour' in the Criminal Code. Exploitation can, for example, occur without exploiters exercising 'ownership' over victims. Similarly, the definition of 'forced labour' is also likely to pose problems for law enforcement agencies and prosecutors. It is somewhat contradictory to argue that non-commercial exploitation, especially sexual exploitation, constitutes a form of labour. Another complication is the definition of 'forced labour' expressly excludes 'sexual services'. As HREOC stated:

One might anticipate that defence lawyers would argue that services or labour of a sexual nature are governed by a specific and exclusive definition (inserted by item 15 of the Bill) and should not be held to be within the wider definition of 'forced labour. 41

2.36 This apparent gap was seen to be a particular problem in the case of child victims who may be trafficked for non-commercial sexual exploitation or so-called personal use. 42

2.37 Representatives of the Attorney-General's Department argued at the hearing that non-commercial sexual exploitation could be addressed appropriately under the proposed offences of trafficking by force, threats or deception or by the proposed offence of trafficking in children.43 Proposed section 271.4 provides for an offence of trafficking in children where a person organises or facilities entry etc of a child and

intends or is reckless to the fact that the child will be used to provide 'sexual services' or 'will be otherwise exploited'. The suggestion being that 'otherwise exploited' would encompass non-commercial sexual exploitation.

2.38 Other witnesses took issue with this response on a number of grounds:

• The Bill's definition of'exploitation' is limited to 'slavery', 'forced labour' or 'sexual servitude'. As noted above, it is argued that reliance on these concepts, as defined, to prosecute non-commercial sexual exploitation will be problematic.

40 World Vision, Submission 12, pp. 8-9 and 13-15 of the Attachment. HREOC noted that, in its view, the term 'other forms of sexual exploitation' in the Protocol's definition of exploitation is not limited to a commercial context. Mr Lenehan, HREOC, Committee Hansard, 23 February 2005, pp.2-3. The problems posed by attempting to fit 'exploitation' as defmed by the Protocol

into the concepts of'slavery', 'forced labour' or 'sexual servitude', as defmed, are also discussed at paragraphs 2.40-2.43 below.

41 HREOC, Submission 9A, p.4.

42 See World Vision, Submission 12, pp 2-5. World Vision cited cases in which children have been brought to Australia to be sexually abused. Examples of non-commercial sexual exploitation of children include trafficking for the purpose of making p*rnography for personal use or for private sex abuse, including sexual exploitation by friends and associates.

43 Committee Hansard, 23 February 2005, p. 49.

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• The term 'otherwise exploited' in new section 271.4 is curtailed by the limited defmition of'exploitation' in the Bill.44

• Reliance on the offences of trafficking by force, threats or deception would not reflect the Minister's stated view that trafficking offences involving children warrant relatively higher penalties.45 The former offences attract a maximum penalty of 12 years imprisonment in contrast to 20 years for the proposed offence of trafficking in children.

• The proposed trafficking offences require proof beyond a reasonable doubt that the consent of the victim (including a child victim) was obtained by force, threat or deception. In contrast, the Protocol expressly states that these means of exploitation are irrelevant in cases involving children and, moreover, the consent of the victim shall not be made an issue.46

2.39 The different approach taken by the Protocol in respect of children (that is, no need to prove coercion, consent etc) was also put forward by World Vision as a justification to create additional, child specific offences to deal with child trafficking, including child debt bondage, child servitude and child slavery. In doing so, World

Vision stressed the very different nature of trafficking in children and the consequences for its victims:

.. . children are particularly susceptible to trawna and injury from child trafficking and related crime, with psychosocial and physical consequences that can last a lifetime. International experience has shown that children are much more vulnerable to traffickers than adults due to their reduced capacity to assess risk, to articulate and voice their worries (know their rights and be able to negotiate them) and to look after themselves (both basic needs and to protect themselves from abuse).47

Non sexual exploitation -forced adoptions and marriages

2.40 World Vision expressed concern that the proposed deceptive recrmtmg offence is unjustifiably narrow as it applies only to sexual exploitation. In commenting on the exposure draft of the Bill, World Vision had argued that the offence should criminalise deceptive recruitment for any form of exploitation which may include, but is not limited to, sexual exploitation. The Attorney-General's

44 HREOC noted that the Bill's Explanatory Memorandum also indicates that 'exploited' as used in this context is to be defmed by reference to the Bill's definition of'exploitation'. It states that the defmition of 'exploitation' in the Bill applies to the trafficking in children offence. Submission 9A, p.3.

45 See Second Reading Speech, Senator the Hon Chris Ellison, Minister for Justice and Customs, Senate Hansard, 8 December 2004, p. 4, as noted by HREOC in Submission 9A, p.5 .

46 See discussion at para's 2.6-2 . 7 and 2.9-2.11 above. 47 Submission, 12, p.3 and pp. 12-13 of Attachment. See also CATWA, Submission 13, pp . 2, 3-4.

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Department's response at that time was also that the proposed trafficking offences could be used to prosecute deceptive recruiting for non-sexual purposes. 48

2.41 World Vision cited trafficking by forced adoptions or servile marriages as two specific examples of forms of exploitation that were not adequately covered by the Bill. 49

It urged the Committee to consider recommending the amendment of the defmition of 'exploitation' in the Bill to include a reference to 'forced adoption and marriage'.

2.42 HREOC endorsed the need to amend the Bill. HREOC advised the Committee that, in its view, the Bill did not adequately address the issue of servile marriages. 5° According to HREOC, the Protocol requires trafficking in servile marriages to be subject to criminal sanctions and that, while not a widespread problem in Australia, servile marriages remain of real concern internationally. 51

2.43 HREOC acknowledged that some of the Bill's offence provisions may cover this form of exploitation. The proposed trafficking offences in subsections 271.2(1) and 271.5(1) of the Bill may, for example, cover trafficking by servile marriages where it could be established that the consent of a 'wife' to enter Australia or to be transported within Australia was procured by threat or force. Proposed paragraphs 271.2(2)(b) and 271.5(2)(b) could conceivably be applied as they include deception as to 'slavery' and 'forced labour'. However, HREOC noted that the internationally

accepted definition of 'servile marriage' is that it is a practice similar to slavery (that is, it is not slavery per se) and has a different content to 'forced labour' as defined in the Bill. Moreover, factors other than force, threats or deception do exist which may operate to prevent a women leaving a servile marriage or a woman in such a marriage

agreeing to travel to or within Australia. HREOC therefore concluded that it was unsafe to rely on the Bill's existing provisions to address this form of exploitation. 52 In reaching this conclusion, HREOC reiterated its view:

. . . the absence of a requirement for an exploitative purpose and the inclusion of a requirement that the force or threats caused the victim to consent are significant and undesirable departures from the ... Protocol. 3

48 Submission 12, p. 6

49 ibid, p. 8.

50 Examples of a servile marriage include situations where: a woman, without the right to refuse, is given in marriage on payment of money or a gift to her parents; a husband, his family or his clan have the right to transfer the husband's wife to another person for money or a gifts; or where a woman on the death of her husband is liable to be inherited by another person.

51 Submission 9A, pp. 5-6.

52 ibid, pp. 5-7.

53 ibid, p. 6. See footnote 10 of that Submission.

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Response of the Attorney-General's Department

2.44 In light of these concerns, the Committee asked the Attorney-General's Department's whether and how the Bill would criminalise the trafficking of adults and children for the pwposes of non-commercial sexual exploitation.

2.45 The Department's response was in essence that non-commercial sexual exploitation was a matter for State and Territory Governments to address under their laws. It was not a matter that the Commonwealth Government had to address in the Bill in order to implement the Protocol. 54

2.46 However, in its response, the Department also advised that:

• The 'strong' measures contained in the Government's trafficking package applied equally to all forms of trafficking and that these would 'ensure that the Government is able to comprehensively combat trafficking in persons for all pwposes'.55

• The Bill would 'build on existing legislation to comprehensively criminalise all forms of trafficking in persons' and that 'the ability of the Australian Government to ratify the Trafficking Protocol is not linked to the enactment of complementary State or Territory legislation.'56

• Non-commercial sexual exploitation would caught by the Bill. That is, that the trafficking in children offence in proposed section 270.4 would be available where the offender was 'reckless' as to the fact that the trafficked child would be either 'used to provide sexual services' or 'otherwise exploited' by the offender or by another person, which the Department suggested included 'a variety of conduct, including child p*rnography.' The Department also noted that, where a trafficked person is 'forced' into marriage, it might constitute slavery under the existing section 270.3 Criminal Code offence. 57

2.4 7 In response to questions about concerns over the lack of infonnation available on which to base trafficking policy and legislation for trafficking for non-sexual pwposes, the Department also advised that 'the Government will investigate currently available information and consider options for further research and infonnation gathering'. 58

54 Submission 17A , pp. 5, 14-15; Committee Hansard, 23 February 2005, pp. 48-49.

55 Submission 17A, pp.7 -8 . The Department did note the exception of the community awareness strategy which is specifically targeted at trafficking for sexual purposes.

56 ibid, pp. 8, 15

57 ibid, pp. 14-15.

58 ibid, p .8

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2.48 The Department also advised that it did not consider that there was a need to create additional offences relating to children given the provision in the Bill for offences when children are trafficked domestically or internationally. These offences attract a higher penalty and do not require proof of consent or of force or threats.59

The Committee's view

2.49 The Committee's starting point is that, in the absence of compelling reasons to the contrary, legislation seeking 'to comprehensively criminalise all forms of trafficking in persons' ought to cover unambiguously all forms of exploitation contemplated by the Protocol. After considering the available evidence, the Committee is not persuaded this will be achieved by relying on the proposed defmition of 'exploitation'. Nor is it persuaded that non-commercial sexual exploitation will be caught effectively and appropriately by the proposed offences in the Bill or that this form of exploitation can be safely left to the laws of State and Territory Governments, which have yet to be consulted in respect of the specific provisions of the Bill. As mentioned elsewhere in this report, the Committee's view is that the Bill itself should be subject to further and wider consultation, including with

State and Territory Governments.

2.50 The Committee also notes with some disquiet World Vision's evidence that, at a meeting with the Attorney-General's Department, World Vision was advised that concerns as to whether the Bill would cover all forms of exploitation or harm could be resolved by having the Bill's Explanatory Memorandum or the Second Reading

Speech detail examples of the matters covered.60

2.51 The Committee in its reports has repeatedly expressed its concern at the practice of relying on an Explanatory Memorandum or a Second Reading Speech in an attempt to clarify matters instead of ensuring that the proposed legislation itself provides the necessary clarity and guidance. Problems of statutory interpretation and uncertainty can and do arise as a result. This is especially true in the case of criminal laws such as the Bill. The Committee's concerns were borne out by evidence that

legal advice subsequently obtained by World Vision concluded that the above-mentioned approach poses a legal risk in that those matters may not be covered by the Bill. The preferred approach was therefore to amend the Bill itself. 61 The Committee shares that view.

Recommendation 6

2.52 The Committee recommends that the Bill be amended to adopt the definitions of the 'trafficking in persons' and 'exploitation' contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

59 Committee Hansard, 23 February 2005, p.47.

60 Ms Fairfax, World Vision, Committee Hansard, 23 February 2005, (World Vision) p.27.

61 ibid.

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Women and Children, Supplementing the United Nations Convention Against Torture, United Nations, 2000 As mentioned above, the Committee also recommends that the trafficking offences be amended to include an element of a purpose of 'exploitation'.

Recommendation 7

2.53 The Committee recommends that proposed sections 271.2, 271.4, 271.5 and 271.7 be amended to remove any doubt that they apply to non-commercial sexual exploitation.

Recommendation 8

2.54 The Committee recommends that the definition of 'exploitation' in the Bill be amended to include an express reference to servile marriages.

Debt bondage not adequately covered?

2.55 Concerns were raised that the proposed definition of 'debt bondage' - and therefore the offences in the Bill that rely on that definition - will not cover all the exploitative arrangements used in trafficking. 'Debt bondage' is defined by the Bill as 'a status or condition arising from the pledge of personal services as security for debts where:

• the reasonable value of those services is not applied toward the liquidation of the debt; or

• the length and nature of those services are not defmed or limited. ' 62

2.56 Submitters queried the utility of this defmition. 63 The Australian Crime Commission, for example, noted that the definition may not capture the exploitative aspects of the contractual arrangement used in the trafficking of sex workers. The Commission advised that its intelligence activities had identified that:

... the reasonable value of the personal services rendered by a contracted prostitute is likely to be applied in liquidation of the debt, and the duration and the nature of the services is likely to be known by the contracted woman. The exploitative feature of this arrangement is in the imposition of the up front contract amount i.e. contracts are generally set at between $30,000-60,000 or the corresponding number of sexual services, after an outlay of a lower amount to get the contracted female

into Australia.

62 See Item 10 of the Bill.

63 Australian Crime Commission, Submission 8, p. 1. Project Respect also pointed to the evidentiary difficulties that the definition posed for any prosecution: Submission 6, pp. 7-8 of the Attachment.

64 Submission 8, p. 1; see also Project Respect, Submission 6, page 7-8 of the Attachment.

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2.57 The Commission therefore advised the Committee that 'further consideration of the drafting of this provision is required'.

2.58 The Commission, as did other submitters, also argued that the penalty for debt bondage should be greater than the penalty provided in the Bill (that is, a maximum of 12 months imprisonment).65 HREOC referred to legislation in Canada and the United States with offences similar to the proposed debt bondage offence and which impose maximum penalties of 10 to 20 years imprisonment. In HREOC's view, this approach correctly recognised that more substantial penalties may be required in some instances of debt bondage. 66 Similar sentiments were expressed by Project Respect:

Debt bondage is as instrumental part in the trafficking process as recruitment and transport as laid out in the Trafficking Protocol. We therefore suggest that the term be lengthened to reflect the seriousness of the crime and its significance in the trafficking process. 67

Response of the Attorney-General's Department

2.59 The Attorney-General's Department's response to the concerns raised by the Australian Crime Commission was as follows:

T'ne debt bondage offence operates where an offender causes a victim to pledge (a) his or her personal services or (b) those of another person as a security for a debt, where either (c) the reasonable value of those services is not applied to the liquidation of the debt, or (d) the length and nature of the

services are not respectively limited or defined . .. . Provided either (c) or (d) is satisfied, excessive up front contract amounts [ie, the exploitative contracts of concern to the Commission] would come within the debt bondage offence. However, where persons enter into a contractual arrangement and neither of those elements is present, in the absence of

factors such as fraud or coercion, such contracts are not be regarded under the Commonwealth's legislative regime as 'criminal'. This is the case even where the terms ofthat contract appear unfair to one of the parties. 68

2.60 The Attorney-General's Department explained that, in its view, the exploitative contracts identified by the Commission would also constitute 'forced labour' as defmed in existing section 73 .2 of the Criminal Code and therefore be covered by existing and new offences.69 That is:

• the existing slavery offence (proposed section 270.3);

65 Australian Crime Commission, Submission 8, page I ; CATWA, Submission 13, p.2.

66 Submission 9A, pp. 9-10.

67 Submission 6, p. 8 of the Attachment.

68 Submission 17A, p.3.

69 ibid.

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• the existing sexual servitude offence (proposed section 270.6);

• the new deceptive recruiting offence (proposed section 270.7(1));

• the new offences of trafficking in persons (proposed sections 271.2(2), 271.3, 271.6(2) and 271.6); and

• the new trafficking in children offences (proposed sections 271.4 and 271.7).

2.61 The Department's response to concerns over the adequacy of the penalty for proposed debt bondage offence was that:

The debt bondage offences are only intended to operate as an alternative in cases where it may be difficult to prove the commission of one of the more serious offences, such as slavery, which carries a penalty of 25 years imprisonment. Many exploitative debt contract arrangements would be covered by the existing slavery offence which specifically provides for situations arising out of 'a debt or contract made by the person'. (Section 270.1 of the Criminal Code.) As it is only intended to cover the least serious instances of exploitative debt contracts, the penalty for the debt bondage offence is 12 months imprisonment. There is a higher penalty where the victim is under the age of 18 of 2 years imprisonment. Debt bondage and trafficking in persons activity will often occur simultaneously, and sentences may be imposed cumulatively. 70

The Committee's view

2.62 The Committee notes that the evidence of the Australian Crime Commission that exploitative contractual arrangements that impose excessive up front contract amounts and which are manifestly unfair are being used in the trafficking of sex workers. The Committee remains concerned that the defmition of debt bondage - and therefore the debt bondage offence provisions - do not capture these arrangements where the reasonable value of those services ,lli applied to the liquidation of the manifestly unfair debt and where the length and nature of the services are limited or defmed. The Committee also has some reservations in seeking to prohibit these exploitative contracts under other offences in the Bill or the Criminal Code on the basis that such contracts constitute 'forced labour', 'slavery', 'sexual servitude' and the like. It also notes that the Crirpinal Code's defmition of 'forced labour' expressly excludes the provision of sexual services for commercial purposes. The Committee's view is that 'debt bondage' should extend to this type of exploitative contract. It is noted that the Committee has also recommended that State and Territory Governments be consulted on the provisions of the Bill. These Governments are responsible for the administration and enforcement of laws governing prostitution in Australia.

70 ibid, p. 2.

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Recommendation 9

2.63 The Committee recommends that the definition of 'debt bondage' in Item 10 of the Bill be amended to include a reference to exploitative contracts that impose excessive up front contract amounts and which are manifestly unfair.

Discrepancies with domestic criminal law principles

2.64 Submissions argued that the proposed changes in the Bill must not only comply with international law such as the requirements of the Protocol, but that they fit within the existing domestic framework of criminal law. In this regard, concerns were raised that the Bill's provisions would lead to possible discrepancies with existing criminal law principles.

Fault elements

2.65 The Castan Centre noted that the proposed offences in the Bill do not use the usual words denoting fault elements, such as 'intention' and 'recklessness'. 71 It therefore recommended that the words 'intentionally or recklessly' be included in the offence provisions. 72 The Centre also recommended that the new trafficking in children offences in proposed section 271.4 and 271.7 be amended to include the fault element of knowledge that the person trafficked is under 18 years of age.

2.66 The Attorney-General's Department advised that section 5.6 of the Criminal Code specifies whether the fault elements of intention or recklessness will apply to the offences. Section 5.6 will operate, for example, to apply the fault element of recklessness to the new aggravated offences dealing with cruel, inhuman or degrading treatment. 73 That is, an offender will be guilty of these offences if the prosecution can prove the offender was aware of a substantial risk that the victim would be subjected to cruel, inhuman or degrading treatment.

2.67 The Attorney-General's Department also advised that including a fault element of 'knowledge' of age in the new trafficking in children offences could result in a person avoiding liability through deliberate disregard as to whether the person trafficked was a child. To avoid this risk, the Bill applies the fault element of

recklessness. That is, an offender will be guilty of the offence if the prosecution can prove the offender was aware of a substantial risk that the victim was a child. 74

71 Submission 15, pp. 4-5. Section 3.1 of the Criminal Code provides that each offence shall consist of a physical element and a mental or fault element, such as intention or recklessness. This reflects the fact that fault must generally be proven for each physical element of an offence for a person to be guilty. Submission 17, p. 2.

72 Ibid.

73 These offences are created by proposed paragraphs 271.3(l)(b) and 271.6(l)(b).

74 Submission 17, p. 2.

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Application of Division 11 of the Criminal Code

2.68 The Castan Centre queried how the Bill's proposed trafficking offences, which refer to 'organising' and 'facilitating', would relate to Division 11 of the Criminal Code. It was concerned that these offences may encroach on Division 11, which criminalises attempts, incitement and conspiracy to commit the offences contained in the Code. The Centre noted that the application of Division 11 to the trafficking offences would create the offences of attempting or conspiring to 'organise' or 'facilitate' entry, receipt of transportation. 75

2.69 The Attorney-General confirmed that Division 11 of the Criminal Code would apply to the trafficking offences contained in the Bill. These require the prosecution to prove beyond reasonable doubt that the offender either organised or facilitated an entry or receipt. In the event that the conduct in question only amounts, for example, to conspiring or attempting to organise or facilitate the entry or receipt of a person, offender can be charged with the appropriate Division 11 offence, and sentenced accordingly. 76

Jurisdiction too narrow?

2.70 The Castan Centre argued that the offences in the Bill had a too narrow geographical reach. Instead, a broad, universal geographical jurisdiction was required - in line with the 'global' approach taken by the Protocol. This would be consistent with other Commonwealth offences in respect of terrorism, child sex tourism, war crimes and crimes against humanity. These have 'Category D jurisdiction' under the Criminal Code, which means that a person can be prosecuted under Australian law irrespective of whether the conduct constituting the alleged offence, or the result of that conduct, occurs in Australia. 77 The Centre was concerned that the Bill may not crirllinalise conduct involving the trafficking of people into Australia by foreign nationals and did not appear to apply where Australian nationals or corporations traffick people outside Australia. 78

2.71 The Attorney-General Department's response was that the Bill criminalises trafficking conduct that telates to the entry or receipt into Australia and the transportation of persons within Australia by any person, including foreign nationals. It also noted that the Bill applies Category B jurisdiction to new offences of sexual servitude and deceptive recruiting for sexual services in amended sections 270.6 and

75 Submission 15, pp. 6-7 .

76 Submission 17, p. 3.

77 Section 15.4 of the Criminal Code.

78 Submission 15, pp. 6-7.

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270.7. This means that they will have a wide geographical reach, including outside Australia. 79

2. 72 The Department advised that Category D offences are generally restricted to the most serious international offences, such as genocide, crimes against humanity and war crimes in the Criminal Code, for which specific resources are available for investigations and prosecutions. It also pointed out that there are many very serious crimes under Commonwealth law to which Category D jurisdiction has not been applied. 80

Need for additional offences to deal with harm to victims

2. 73 Witnesses also argued that the Bill should contain specific offences dealing with situations where, as part of trafficking, a victim suffers egregious or gross harmY Examples cited included trafficking victims being raped, contracting HIV I AIDs, becoming pregnant, undergoing forced abortions, or suffering psychiatric illness as a consequence of their exploitation.82

2.74 In response, the Attorney-General's Department advised the Criminal Code's defmition of 'serious harm' would include each of the examples of harm cited by witnesses. As such, they would also be covered by the aggravated offences provided in the Bill. These apply where an offender's conduct has subjected the victim to cmel, inhuman or degrading treatment or otherwise gave rise to a danger of death or 'serious harm' to the victim. It was also noted that the prosecution is only required to prove beyond a reasonable doubt that that conduct gave rise to a danger of serious harm, and the trafficker was reckless as to that danger. 83

2.75 HREOC also noted that the position of children is dealt with separately in the new trafficking in children offence in section 271.4, which attracts the same penalty as the Bill's aggravated offences.

79 Category B jurisdiction, for example, provides that a person commits the offence if: the conduct constituting the alleged offence or a result of that conduct occur wholly or partly in Australia or on board an Australian aircraft or ship. The offence is also committed if the conduct occurs wholly outside Australia and the person is an Australian citizen, resident or body corporate incorporated in Australia. See section 15 .2 of the Criminal Code.

80 Submission 17, p. 4.

81 World Vision, Submission 12, p. 9.

82 ibid, pp. 14-15 of the Attachment.

83 Submission 17A, pp. 4-5.

84 Submission 9A , p. 12. HREOC noted that, if there were any doubts, it would support including an express reference to 'forced abortion' in the relevant provision of the Bill. However, it pointed out that forced abortions would seem to come within the definitions of'harm' (ie, due to the danger of psychological harm) and of 'physical harm'.

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2.76 The Criminal Code defines 'harm', 'harm to a person's mental health', and 'serious harm' in the following terms:

harm means physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

harm to a person's mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger. ·

physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that the person might reasonably object to in the circ*mstances (whether or not the person was aware of it at the time).

serious harm means harm (including the cumulative effect of any harm): (a) that endangers, or is likely to endanger, a rerson's life; or (b) that is or is likely to be significant and longstanding. 8

The use of absolute liability in offence provisions

2.77 Concerns were raised over the use of absolute liability in the Bill's proposed trafficking in persons offences.86 Proposed subsections 271.2(3) and 271.5(3) provide that 'absolute liability' shall apply in respect of the element in each offence that the use of force or threats by the perpetrator resulted in the victim giving consent. According to the Explanatory Memorandum, this removes the requirement that the prosecution must prove a fault element for that element. It also means the defence of mistake of fact will be unavailable to defendants charged with the offence. 87 All the prosecution must therefore establish is that the defendant's intentional use of force or threats actUally resulted in the defendant obtaining the victim's consent to the entry, receipt or transportation. It need not establish that the defendant was aware that the force or threats resulted in that consent.

2. 78 Scarlet Alliance criticised this approach as 'a short sighted breach of human rights' which 'may result in unfair application of this law'. 88 The Castan Centre also argued that the proposed use of absolute liability made no sense as 'a fault element is irrelevant to whether or not a person's consent resulted from the use of force or threats'. The Centre's view was that the use of absolute liability was 'nonsensical and should be omitted'. 89

85 Dictionary of the Criminal Code.

86 See, for example, Castan Centre, Submission 15, p. 5.

87 Explanatory Memorandum, p. 7.

88 Submission 2, p. 5.

89 Submission 15, p. 5.

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2. 79 These concerns were put to the Attorney-General's Department. It maintained that absolute liability was necessary, especially given the need for deterrence. It advised that, if the prosecution were required to prove the defendant was aware that the force or threats would result in the victim's consent, many defendants would be able to escape liability by showing that they did not turn their minds to, or were reckless to, that issue. The Department noted that absolute liability is applied only in a limited way to particular elements in two offences where the offender has intentionally used force or threats. There will still be a requirement to prove beyond reasonable doubt that the trafficker used force or threats against the victim, and that those threats or that force resulted in the victim consenting to the entry or proposed entry to Australia. 90

Definition of deceives

2.80 The Castan Centre drew the Committee's attention to two apparent problems with the definition of 'deceives' contained in proposed section 271.1. It noted that the section did not refer to a fault element, which appeared at odds with the Criminal Code's existing definition of 'deception'. It refers to 'an intentional or reckless' deception.91 The proposed definition also does not apply to amended subsection 270.7(1) of the Criminal Code which contains a reference to 'deceives'.

92

2.81 The Attorney-General's Department explained that the definition of 'deceive' in the Bill relates to the new trafficking offences in proposed subsections 271.2(2) and 271.5(2) of the Bill. The Criminal Code fault elements will apply to these offences and are therefore not repeated in the defmition. 93

2.82 However, the Department did agree that:

Division 270 of the Code should be amended to include the same definition of 'deceive' that the Bill includes in proposed Division 271. 94

Legitimate employment arrangements unintentionally criminalised?

2.83 Scarlett Alliance raised concerns that the provisions of the Bill, particularly in relation to debt bondage and domestic trafficking, could result in the explicit targeting of workers in the legal sex industry and the criminalisation of legitimate employment

90 Submission 17, pp. 4-5. Committee Hansard 23 February 2005, pp. 49-50.

91 Section 133 .1 of the Criminal Code.

92 Submission 15, pp 7-8.

93 Submission 17, pp. 4-5

94 ibid

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arrangements which are not unfair or exploitative. 95 This, it suggested, was due in part to the Bill's focus on 'sexual services' in seeking to address trafficking. This was considered unnecessary in that sex work is treated as a subset of 'labour' by the Protocol. That is, forced or coerced adult sex work is covered by the Protocol in the context of slavery, forced labour or servitude. As such, it is not necessary for the Bill to refer specifically to sexual labour in order to comply with the Protocol. 96 Exploitation in Australia's legalised or decriminalised sex indusW should therefore be addressed in the same manner as exploitation in other industries. 9

The Committee's view

2.84 The Committee agrees that the Bill should be amended to include in Division 270 of the Criminal Code the same defmition of 'deceive' that the Bill currently includes in proposed Division 271.

2.85 After careful consideration of the conflicting positions of the

Attorney-General's Department and of the above-mentioned submitters, the Committee considers that the concerns outlined above, although important, do not warrant specific recommendations to amend the Bill.

2.86 In respect of absolute liability, the Committee considers that, on balance, there would be a need for the use of absolute liability in the manner proposed. However, the Committee has recommended that any reference to consent be omitted from the relevant sections. A consequence will be the removal of any requirement for absolute liability.

2.87 The Committee has recommended that the Bill be subject to further and more extensive consultation, including with State and Territory Governments. In the course of this consultation, further consideration can be given to the implications of the debt bondage and domestic trafficking provisions to sex workers in State and Territory jurisdictions which have legalised or decriminalised prostitution.

Recommendation 10

2.88 The Committee recommends that the Bill should be amended to include in Division 270 of the Criminal Code the same definition of 'deceive' that the Bill currently includes in proposed Division 271.

95 Ms Fawkes, Committee Hansard, 23 February 2005, pp. 18-19. World Vision also noted that the Bill appeared to focus undely on sexual exploitation. Ms Fairfax, Committee Hansard 23 February 2005, (World Vision), p. 29. Scarlet Alliance suggested, for example, that the proposed domestic trafficking in persons offence may impinge on the movement between States and Territories of those working in the legal sex industry.

96 Network of Sex Projects, Submission 1, p. l.

97 Ms Fawkes, Committee Hansard, 23 February 2005, p. 17. World Vision also noted the legislation's significant focus on sex trafficking. Ms Fairfax, Committee Hansard, 23 February 2005,p. 26

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CHAPTER3

OTHER ISSUES

3.1 A number of other issues arose during the course of the inquiry. This section of the report discusses:

• consultation in the development of the Bill;

access to justice for victims of trafficking;

• victim support; and

• alternative legislative approaches.

Consultation

3.2 As part of its inquiry, the Committee examined the consultation process undertaken in the development of the Bill. This section of the report will look at:

• consultation with interested stakeholder groups; and

• consultation with states and territories.

Consultation with interested stakeholder groups

3.3 The Committee is concerned to note evidence that key stakeholder groups were not contacted by the Attorney-General's Department in the development of the legislation. HREOC, a key body in monitoring and developing policy relating to Australia's obligations under international human rights conventions and treaties,

advised that it had not been asked by the Attorney-General's Department to comment on either the exposure draft of the Bill, or the Bill itself. 1

3.4 Other stakeholder groups giving evidence to the Committee also advised that they had not been consulted, and had only become aware by hearsay that an exposure draft of the Bill was available. Representatives of World Vision and of Scarlet Alliance told the Committee that they were alerted to the existence of the exposure draft through attendance at a conference on trafficking? Both World Vision and

Scarlet Alliance subsequently made submissions, but neither was contacted by the Department with feedback. 3

3.5 Scarlet Alliance expressed concern that the views of contract sex workers and others affected by the legislation were not being heard.4 The Australian Federation of

Submission 9A, p. l.

2 Committee Hansard, 23 February 2005, p. 19 (World Vision), and p. 11 (Scarlet Alliance).

3 ibid, p. 19 (World Vision), and p. 12 (Scarlet Alliance).

4 ibid, p. 11.

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AIDS Organisations (AFAO) also emphasised the importance of consultation with affected groups in the community in the development of legislation. AF AO submitted that:

It is a fundamental principle in developing good public policy that communities most affected by policies and laws be intimately involved in the development and implementation of new models and approaches. It is imperative that sex worker organisations be more closely involved in further developing legislation that applies to trafficking. If the legislation is to achieve the aim of reducing rather than adding to the exploitation· of persons, it is essential that sex worker groups participate extensively in formulating legislative responses. 5

3.6 In response to Committee questioning about the consultation process, the Attorney-General's Department advised that a press release in relation to the Bill was issued by the Minister on 31 August 2004, and placed on the Department's website, along with the exposure draft. The website displayed an invitation for comment on the exposure draft. In evidence to the Committee, a representative of the

Attorney-General's Department advised that the calling of the federal election (on 29 August 2004) placed the Department in caretaker mode, which 'limited the way that [the Department] could engage with stakeholders'. 6 The election was held on 9 October 2004 and the new Ministry was sworn in soon thereafter.

3.7 The Attorney-General's Department advised of 13 submissions received on the exposure draft, from groups and individuals. In evidence to the Committee, a representative of the Department suggested that the process of scrutiny by the Senate committee process was also part of the consultation process. 7 The representative stated:

... as part of this process of the committee inquiring into this legislation, as always policy is an iterative process and the government will consider the kind of recommendations that come out of the committee's deliberations today. 8

Consultation with States and Territories

3.8 As well as an apparently flawed approach to consultation with stakeholder groups, the Committee is concerned with an apparent lack of adequate consultation on the Bill with States and Territories.

3.9 The Attorney-General's Department advised of a number of activities undertaken over recent years with states and territories in relation to the negotiation of the Protocol, and in the general area of trafficking in persons. These included:

5 Submission 4, p. 2.

6 Committee Hansard, 23 February 2005, p. 28 .

7 ibid, p. 33 .

8 ibid.

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•

•

•

•

•

31

July 2000 meeting of the Standing Committee of Attorneys-General (SCAG): paper outlining the status of Protocol negotiations prepared;

November 2000: National Anti-Crime Strategy Lead Ministers briefed on the Protocol;

May 2001 and November 2003: the Convention was discussed at the Commonwealth-State Standing Committee on Treaties (SCOT);

Australian Crime Commissioners' Forum activities, including the endorsem*nt of the National Policing Strategy to Combat Trafficking in Women for Sexual Servitude for 2004-06 in July 2004; and

Australian Police Ministers' Council activities.9

3.10 The Committee commends this ongoing dialogue with states and territories in the area of trafficking in persons, but notes evidence that there has been no consultation with states and territories on the Bill itself. Representatives of the Attorney-General's Department told the Committee that states and territories were not directly consulted. Moreover, there was no need to do so as the Government had the constitutional power to proceed with the legislation and there was no need for the enactment of complementary State or Territory legislation. 10

3.11 The Committee notes the long-standing recognition that there is a need for clear and complimentary federal and state laws and responses to criminal activity, including trafficking. This recognition is reflected in the establishment in the early 1990s of a Commonwealth-State body to develop model criminal laws to be adopted in by the Commonwealth and the States and Territories. This body is currently known as the Model Criminal Code Officers Committee (MCCOC).

3.12 The Castan Centre expressed concern that the MCCOC does not appear to have been consulted in relation to the new offences proposed in the Bill. This is despite the involvement of the MCCOC in previous consultations regarding debt bondage, and despite MCCOC's previous key role in changes to the Criminal Code relating to slavery and sexual servitude. I I For example, the Attorney-General's Department advised that the MCCOC's 1998 report on sexual servitude and slavery was the source of the definition of'sexual services', on which the Bill will rely.

3.13 The Castan Centre noted that the MCCOC had cautioned that new offences aimed at sex slavery should be consistent with the general principles of criminal law. The MCCOC had also noted that prostitution is subject to different and volatile legal regimes in the states and territories. I2

9 Submission 17, pp. 1-2.

10 Committee Hansard, 23 February 2005, pp. 28-29, Submission 17, p. 1.

11 Submission 15, p. 3.

12 ibid, p. 4.

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3.14 In this respect, the Committee notes the concerns (discussed earlier in this report) that the proposed debt bondage offences may have the effect of criminalising employment arrangements that are legitimate under various state and territory laws. Such a discrepancy may have implications for the ability of State and Territory authorities to administer and enforce prostitution laws. As such, it would appear to be a matter where consultation with States would be appropriate. Similarly, the Committee also notes advice from the Attorney-General's Department that laws in relation to non-commercial sexual exploitation such as servile marriages are the responsibility of States and Territories, and that the measures in the Bill complement State and Territory legislation.13 The Committee considers this is another example where consultation with the States and Territories would have been appropriate.

3.15 A representative ofthe Attorney-General's Department advised that MCCOC had not been consulted on the Bill, giving the following reason:

The reason is primarily that the Model Criminal Code Officers Committee ' s main focus is the development of legislation that is designed particularly to be implemented by the states and territories, whereas we have a very clear scope to enact legislation covering the field of trafficking persons into Australia. 14

3.16 The Committee notes, however, the view of the Castan Centre, that the Bill should be referred to the MCCOC:

In our view, it is imperative that the current Bill be referred to the MCCOC to be considered via its standard consultation and reporting process so as to avoid any discrepancies with general principles of criminal law and to maintain the project of crafting a consistent and model Criminal Code. 15

The Committee's view

3.17 The Committee commends the work being done by government departments and agencies to address the issue of trafficking in persons. The Committee is concerned, however, that in the preparation of the Bill proposing to introduce new trafficking offences, there has been an inadequate process of consultation. An exposure draft of the Bill was produced, yet interested stakeholder groups were not contacted. The Committee notes that concerns have been raised that the proposed new offences may cut across prostitution laws in States and Territories. These concerns were not been answered during the inquiry and still exist. Yet, the Bill was not referred to MCCOC, the body which has the responsibility to develop consistent model criminal laws across Australia.

3.18 The Committee is also concerned at the suggestion by the Attorney-General's Department that the Senate committee process is apparently part of or a substitute for

13 Submission 17A, pp. 7-8 (as discussed earlier in this report).

14 Committee Hansard, 23 February 2005, p. 28.

15 Submission 15, p. 4.

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formal community consultation processes. The Committee believes that effective consultation with stakeholder groups should occur prior to legislation being introduced into Parliament. This ensures that Bills are fully informed by the views of those who are affected by proposed legislation. The Committee believes that the

Senate committee process is not a substitute for a sound consultation process. This is especially so, given that very short timeframes for committee inquiries are often imposed by the Senate, which can allow little time for full participation by stakeholder groups.

3.19 The Committee supports calls that the Bill be referred to the MCCOC in order that State and Territory Government and MCCOC have the opportunity to examine the proposed new offences and ensure that consistent model criminal code legislation is maintained.

Recommendation 11

3.20 The Committee recommends that the provisions of the Bill be subject to further and wider consultation, including with State and Territory governments.

Recommendation 12

3.21 The Committee recommends that in the process of consulting State and Territory governments, the Bill also be referred to the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General for comment.

Access to justice for victims of trafficking

3.22 World Vision suggested several measures should be adopted in the Bill to increase access to justice for trafficking victims.16 These proposed measures included:

• the use of victim impact statements in sentencing; and

• particular provisions and procedures relating to children.

Victim impact statements in sentencing

3.23 World Vision expressed support in their submission for the recommendation by the PJCACC that 'consideration also be given to adopting the use of victim impact statements in sentencing'.17 The PJCACC noted that: State legislation (such as the NSW Crimes (Sentencing Procedure)

Amendment (Victim Impact Statements) Act 2004) provides for the Court to accept Victim Impact Statements in certain serious matters, after conviction, and before sentencing . . . Given the nature and effect of the

16 Submission 12, p. 6.

17 ibid, p. 6; see also PJCACC, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, pp. 52-53.

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sexual trafficking offences on the victim, there is a compelling reason to require that victim impact be considered when sentencing offenders. 18

3.24 In response to the Committee's questions on notice on this issue, HREOC supported the use of victim impact statements. It noted that their use would be consistent with Australia's international obligations, such as the Convention on the Rights of the Child, and the terms of the Protocol. 19

3.25 However, again in response to the Committee's questions on notice, the Attorney General's Department noted that:

Section 16A(2)(d) of the Crimes Act 1914 (Crimes Act) provides that in determining the sentence to be imposed on a person in respect of a federal office, the court must take into account the personal circ*mstances of any victim of the offence.

3.26 The Department continued:

Evidence given to the court ... may include a statement by the victim of the offence about his or her experience of the impact of the offence.20

The Committee's view

3.27 The Committee's view is that consideration should be given to the greater use of victim impact statements in the sentencing of federal offenders for certain types of offences, especially sexual offences involving children. The Committee notes the growing number of federal offences that can involve child victims. The Committee also considers that federal, State and Territory sentencing regimes ought to be consistent in this regard. The need for uniformity is another reason why greater consultation with State and Territory Governments, particularly through MCCOC, ought to have occurred.

Proceedings involving children

3.28 World Vision urged the adoption of child sensitive police and court procedures in trafficking prosecutions, based on the child's best interest. 21 World Vision observed that trafficking is an 'extremely serious form of child abuse'

22 and that

18 PJCACC, Australian Crime Commission's response to trafficking in women for sexual servitude, June 2004, p. 52.

19 Submission 9A , p. [8].

20 Submission 17A, p. 6.

21 Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

22 Submission 12, p. 6.

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the 'risk of retraumatisation during an investigation or court case is very high'. 23 Ms Kayte Fairfax from World Vision explained:

... any child that has been trafficked has a great risk of traumatisation and has already been traumatised severely, with a range of effects. Added to that, any trafficking victim-whether adult or child-has a very real fear of retribution from traffickers.24

3.29 World Vision commended the United Nations International Children's Emergency Fund (UNICEF) guidelines for the protection of the rights of child victims of trafficking in south-eastern Europe. According to World Vision, these guidelines set out a number of important princTsles that should underpin Australian trafficking law and policy relating to children. 5 These emphasise, for example, that the best interests of the child shall be the overriding consideration:

In all actions concerning child victims, whether undertaken by public or private social welfare institutions, police, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration. 26

3.30 World Vision outlined a number of measures that could be taken in the conduct of criminal proceedings relating to child victims. 27 In particular, World Vision submitted that:

Penal procedural codes should allow for videotaping of the child's testimony and presentation of videotaped testimony in court as official evidence in all trafficking related cases (not just sex trafficking offences). Police, prosecutors, judges and magistrates should apply child-friendly

practices.28 ·

3.31 More specifically, World Vision pointed to the current provisions in Part lAD ('Protection of children in proceedings for sexual offences') and Part IliA ('Child Sex Tourism') of the Crimes Act 1914 (Crimes Act). 29

It was suggested that:

... there should be specific sections in the Criminal Code that deal with the provision of evidence by children ... Under the Crimes Act, the sections are specific to the interviewing of children for sexual offences, whereas we feel

23 Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

24 Committee Hansard, 23 February 2005, p. 22.

25 Submission 12, Attachment A, p . 6; see also Ms Kayte Fairfax, Committee Hansard, 23 February 2005, p. 18.

26 For a full list of relevant principles, see World Vision, Submission 12, Attachment A, p. 6.

27 Submission 12, Attachment A, p . 11.

28 ibid, p. 11.

29 Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18 .

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that, in the case of trafficking, it is important that these sorts of provisions also exist for non-sexual offences. 30

3.32 World Vision explained that the possible protection provided by the above includes: the use of video evidence and closed-circuit television; disallowance of inappropriate cross-examination; a bar on a child's other sexual experiences being used against him/her, and the exclusion of certain persons from the courtroom; and a bar on the publication of the child's name or any names which would identify the child.

31

Ms Lee-May Shaw further observed that such provision could also the quality of evidence and the ability of witnesses to provide evidence in courts'. 2

3.33 World Vision recommended that the Bill be amended to ensure that the provisions contained in Part lAD of the Crimes Act apply to evidence relation to offences brought under the proposed trafficking offences in the Bill. 3 World Vision also specified that these provisions should be extended to protect all child victims of trafficking, not just victims of sex trafficking. 34

3.34 In response to the Committee's questions on notice, the Attorney-General's Department also pointed to Part lAD of the Crimes Act , submitting that:

Australia also has existing protection for child witnesses and child complainants, in proceedings for all federal sex offences (including sexual servitude and deceptive recruiting) to ensure that children are able to testify freely and effectively as possible. Some of those protections are contained in Part lAD of the Crimes Act... 35

3.35 However, the Committee notes that section 15Y of the Crimes Act states that the special protections in Part lAD only apply to proceedings for certain offences. This section specifically states, for example, that Part lAD applies to proceedings for offences against Division 270 of the Criminal Code (slavery, sexual servitude and deceptive recruiting) and against Part IliA of the Crime Acts (child sex tourism). However, there does not appear to be any provision for the protections in Part lAD to apply to proceedings for offences under the proposed new Division 271 contained in the Bill.

30 Ms Lee-May Saw, Australian Women Lawyers (appearing in conjunction with World Vision), Committee Hansard, 23 February 2005, pp. 21-22.

31 Submission 12, p. 7.

32 Australian Women Lawyers (appearing in conjunction with World Vision), Committee Hansard, 23 February 2005, p. 22.

33 Submission 12, p. 7; see also Ms Kayte Fairfax, World Vision, Committee Hansard, 23 February 2005, p. 18.

34 ibid.

35 Submission 17A, p. 9.

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Presumption that a victim is a child

3.36 World Vision further proposed that there is a need for a presumption that a victim is a child in certain circ*mstances:

.. . where the age of a victim is uncertain and there are reasons to believe she/he is a child, the presumption should be that they are a child and pending verification of the victim's age, the victim should be treated as a child and accorded all relevant special protection measures. 36

3.37 The Committee received little other evidence on this particular issue. However, it notes that the proposal appears to have merit.

The Committee's view

3.38 The Committee recognises that it is important to ensure trafficking victims are able to receive appropriate access to justice. The Committee acknowledges the evidence from the Attorney-General's Department that there is potential for victim impact statements to be used in sentencing for the proposed offences under the Bill.

3.39 The Committee also recognises that special procedures are desirable to protect children who are victims of trafficking in court proceedings. The Committee is concerned that Part lAD of the Crimes Act and the protection for children provided by that Part may not apply to proceedings for offences proposed under the Bill.

Recommendation 13

3.40 The Committee recommends that the Bill be amended to ensure that Part lAD of the Crimes Act 1914 applies to offences against the proposed Division 271 of the Criminal Code inserted by the Bill.

Victim support

3.41 A number of submissions raised concerns in relation to support for victims of trafficking. It was noted that Australia's treaty obligations in relation to the Protocol relate not only to the deterrence of criminal activity but also extend to the area of victim support.37 Article 6 of the Protocol requires parties to the Protocol to provide to victims of trafficking, physical, psychological, and social support, including housing, medical and employment assistance. Article 7 of the Protocol refers to measures

enabling victims of trafficking to remain in country, stating that:

... each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.

36 Submission 12, Attachment A, pp. 10-11.

37 Law Council of Australia, Submission 7, p . .2.

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3.42 The Action Plan38 refers to the Protocol, and outlines Australia's response, including measures to support victims, and visa arrangements for victims. The Action Plan states that:

A management approach is used, and suspected victims who are granted a Bridging F Visa can receive intensive support for the period of the Visa's validity or until they wish to leave Australia, whichever occurs first. This support includes temporary accommodation, access to Medicare and medical services, counselling and legal services, training, and social support. Victims who are subsequently granted a Criminal Justice Stay Visa can continue to receive support.

Additionally, victims who, as a result of their contribution to an investigation or the prosecution of people-trafficking offenders, are deemed at risk of harm if they return to their home country may be eligible for a temporary or permanent Witness Protection (Trafficking) Visa. 39

3.43 Responsibility for the planning and administration of the victim support package lies with the Office For Women.40 It coordinates the Support for Victims of People Trafficking Programme.41

Link between visas, and provision of assistance to police

3.44 Arrangements for the issuing of visas to trafficking victims were raised as a concern by several submittors. Of particular concern was the apparent linkage of a victim's eligibility for a visa, with the assistance of the victim in the investigation and prosecution of trafficking offences. HREOqs submission argued that restricting support programs only to those women whose evidence is useful to the prosecution is inconsistent with a human rights approach to trafficking. HREOC stated:

Restricting access to recovery and support programs to those women who undertake to assist the investigation or prosecution of trafficking offences and to those women whose evidence is considered to be of value, means that many victims of trafficking would not be eligible for any assistance despite suffering significant human rights abuses. From a human rights point of view, access to these programs should be on the basis ofneed.42

3.45 Mr Craig Lenehan ofHREOC told the Committee:

38 Australian Government Action Plan to Eradicate Trafficking in Persons, plan presented jointly by Attorney General, Minister for Foreign Affairs, Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Justice and Customs, and Minster Assisting the Prime Minister for the Status of Women, 2004.

39 Action Plan, pp. 13-14.

40 Formerly the Office of the Status of Women.

41 See Office For Women website accessed 1 March 2005. http://ofw.facs.gov.au/intemationaVcombating people trafficking/index.htrn

42 Submission 9, p. [7].

92

Assessment for visas should be made on the basis of the status of a person as a victim of trafficking and on the need to ensure their safety. This is, after all, a human rights issue.43

39

3.46 World Vision also supported removing links between visas and the provision of assistance to prosecutors. World Vision advocated for an extension of visa eligibility to the children and siblings of trafficking victims:

The Federal Government should increase eligibility for visas for trafficking victims beyond the current bridging visa F and trafficking witness protection visas. Victims of trafficking should have the right to stay in Australia because of their needs, circ*mstances and risk profile, rather than only for reasons of their usefulness to Australian police and prosecutors. Visas should be available to all trafficking victims in Australia, not only those who have been trafficked to Australia (i.e. should cover those seeking safety in Australia having been trafficked elsewhere), and should be available to the children and siblings of trafficking victims.44

3.47 It was observed that the credibility of evidence given in court by a trafficking victim may be subject to attack by the defence on the basis that the evidence was fabricated in order to obtain a visa and accompanying support. HREOC argued that de-linking visa eligibility with the provision of evidence of value to the prosecution would remove the ability of a defence lawyer to undermine evidence:

... if a person's evidence is required to be of a sufficient standard to allow them to receive support, it could well be argued during criminal proceedings that the evidence was fabricated in order to achieve that standard. Whereas, if the support is provided as a matter of course because the person needs that support, it de-links it from the ability of defence lawyers to claim that the evidence is not as credible as it sounds.45

3.48 Project Respect observed that many trafficked women are reluctant to assist police because of fears that to do so may have adverse consequences for their families. Project Respect submitted that:

. .. some women are choosing not to access support because they are frightened of the repercussions of being a witness in a prosecution. In one case, a woman in Melbourne decided not to contact the police because she feared for her family. She made the point that while the police may be able to keep her safe (and even this point worried her), they could not protect her family in her home country. She believed she did not have the right to imperil her family, and so elected not to contact the police. This meant she

was excluded from accessing the support services offered by the federal ffi kin . . 46

government to tra 1c g v1ct1rns.

43 Committee Hansard, 23 February 2005, p. 3.

44 Submission 12, Attachment A, p . 9.

45 Ms Moyle, HREOC, Committee Hansard, 23 February 2005, p. 9.

46 Submission 6, p. [2].

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40

3.49 A representative of DIMIA explained to the Committee that 'the visa system is indifferent to the success of the prosecution.' He advised that:

When you look at the government's package overall, it has created more distance from that sort of accusation than there was before because previously the prosecuting agencies had to support the person. The support arrangements are now quite separate.47

3.50 However, the representative confirmed that the visa system 'does require assistance in respect of the investigation, and possibly in respect of the prosecution'. 48

In response to questions placed on notice by the Committee, DIMIA defended the linkage between visas and assistance to police. It contended that, to grant access to residency to every person who claims to be trafficked, may increase the level of fraudulent claims. DIMIA stated:

It is not reasonable to expect that every person who claims to be trafficked should be allowed to stay in Australia and it is very difficult to test such claims if there is no judicial process. Some trafficking claims have not been substantiated and in some cases people may have been both trafficked and participated in trafficking. Allowing ready access to residence may facilitate trafficking or increase the level of fraudulent claims, diverting criminal justice resources. 49

3.51 In evidence to the Committee, Project Respect and HREOC made

comparisons with other jurisdictions, observing that in the United States and Italy, provision of support to victims is not tied to a victim giving police useful

information. 5° In response, DIMIA advised the Committee:

In developing the visa regime consideration was given to trafficking visa models in other countries. The model developed has a strong focus on stopping the traffickers who perpetuate this insidious trade while protecting those who assist in their investigation and prosecution. 5 1

What happens afterwards?

3.52 Another matter raised with the Committee was the question of what happens to trafficking victims once they have assisted police, and a criminal justice process has been completed. HREOC expressed concern that a trafficking victim who has assisted police may remain at risk:

47 Committee Hansard, 23 February 2005, p. 38.

48 Committee Hansard. 23 February 2005, p. 38 .

49 Submission 16, p. [3].

50 Project Respect, Submission 6, p . [2]; Ms Sally Moyle, HREOC, Committee Hansard, 23 February 2005, p. 24.

51 Submission 16, p. [5].

94

... the witness remains at risk after she has given evidence, but it is unclear if any kind of assistance will be available once the criminal justice stay [visa] expires. 52

41

3.53 Project Respect argued in favour of the establishment of an adequate mechanism for establishing that it is safe for trafficked women to return home:

... there is no independent process for establishing if it is safe for women to return to their home country. It is not only women who appear as witnesses who may be at risk if they return home. Women who are known to have cooperated with police (even if this did not lead to a prosecution) may be unsafe, but there is currently no clear process for establishing this. 53

3.54 The Law Council expressed the view that the Bill should reflect the Government's responsibilities under Article 7 of the Protocol, relating to permitting trafficking victims to remain, and not be repatriated. The Law Council noted that PJCACC had recommended that:

. .. all trafficked women accepted onto the victim support program or receiving the Criminal Justice Stay Visa be exempt from compulsory return to their country of origin. 54

The Committee's view

3.5 5 The Committee acknowledges concerns relating to the tying of victim support to assistance to police and prosecutors. It also notes concerns regarding the fate of victims once they have assisted in a criminal justice process. The Committee recognises there are difficulties involved in crafting policy to address problems relating to trafficking in persons, whilst at the same time attempting to protect the victims of trafficking.

3.56 The Committee considers that further consideration ought to be given to the arrangements for the protection and support of victims of trafficking, especially in light of the imminent ratification of the Protocol and its international obligations in area of victim support. The Committee notes that Australia is only one country among many dealing with this issue. It also notes DIMIA's advice that trafficking visa models of other countries were considered in the development of Australia's visa regime. The Committee believes there is merit in regular review of developments of other countries in their approaches to trafficking in persons.

52 Submission 9, p. [7].

53 Submission 6, p. [3].

54 PJCACC, Inquiry into trafficking of women for sexual servitude, June 2004, recommendation 8, p. 57.

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42

Alternative legislative approaches

Decriminalising supply and crimina/ising demand

3.57 Some submissions argued that the most effective way to reduce demand and end trafficking is to prohibit the purchase of sexual services. CA TWA advised that Sweden has taken such an approach, and recommended that Australia should take similar measures. 55

Work visas for sex work

3.58 The Sexual Service Providers Advocacy Network (SSPAN) advocated reforming the visa system to allow sex workers from other countries to apply for visas and to work within the legal sex industry in Australia. Scarlet Alliance argued that new visa categories would remove the environment enabling the exploitation of the labour of trafficked women. 56

3.59 AF AO supported such proposals, submitting that:

Enabling sex workers to work legally in Australia for short periods of time could help to remove 'traffickers' from the picture. For example, an alternative approach to that of increasing criminal penalties is one of encouraging women to work legally through developing an employer sponsored working visa category for sex work, which would remove the criminal elements involved in existing contract labour arrangements. 57

3.60 The AFAO emphasised the benefits of a legalised framework for sex work, arguing that a requirement of a working visa could be that a sex worker could be required to maintain contact with health promotion services. 58

3.61 . Other submitters, such as CATWA, argued against proposals for a working visa category for sex workers:

Issuing work visas would not end the traffic, but simply create a two tier system in which women who held visas would be prostituted across borders with the approval of the Australia government. Traffickers would apply for working visas, as they now do for refugee visas, on behalf of the women and then carry on in their usual way i.e. debt bondage, various degrees of coercion and force. Few, if any, women will travel independently because

55 Submission 13, p. [4]. The Catholic Women's League put forward a similar view in its submission to the PJCACC's 2004 inquiry into the trafficking of women for sexual servitude. (See Submission 14 to this inquiry, p . 3.)

56 Submission 2, p. 11.

57 Submission 4, p. 2.

58 ibid.

96

of the expense, difficulties of lanpage and so on. Visas for sex workers will simply legitimise trafficking. 5

The Committee's view

43

3.62 The Committee acknowledges the concerns raised, and the often differing views expressed. In general, the issues are of a broader nature, and beyond the scope of this inquiry. The Committee considers that the concerns raised are not sufficient to prevent the passage of the Bill.

Recommendation 14

3.63 Subject to the preceding recommendations, the Committee recommends that the Bill proceed.

Senator Marise Payne

Chair

59 Submission 13, p. [3] .

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98

APPENDIX!

ORGANISATIONS AND INDIVIDUALS THAT PROVIDED THE COMMITTEE WITH SUBMISSIONS

Network of Sex Work Projects (NSWP)

2 Scarlet Alliance

2A Scarlet Alliance

3 Sexual Service Providers Advocacy Network (SSP AN)

4 Australian Federation of AIDS Organisation Inc (AFAO)

5 Australian Catholic Migrant and Refugee Office

6 Project Respect

6A Project Respect

7 Law Council of Australia

8 Australian Crime Commission

9 Human Rights and Equal Opportunity Commission (HREOC)

9A Human Rights and Equal Opportunity Commission (HREOC)

10 United Nations High Commissioner for Refugees (UNHCR)

11 Western Australia Police Service

12 World Vision Australia

13 Coalition Against Trafficking in Women Australia (CATW A)

14 Catholic Women's League Australia Inc. (CWLA)

15 Castan Centre for Human Rights Law

16 Department of Immigration and Multicultural and Indigenous Affairs

17 Attorney-General's Department

17 A Attorney-General's Department

99

46

18 Australian Federal Police

100

APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE

Sydney, Wednesday 23 February 2005

Human Rights and Equal Opportunity Commission

Ms Sally Moyle, Director, Sex Discrimination Unit

Mr Craig Lenehan, Deputy Director, Legal Services Unit

Scarlet Alliance

Ms Janelle Fawkes, President

Ms Elena Jeffreys, Volunteer Policy Analyst

World Vision Australia

Ms Kayte Fairfax, Policy Officer (Child Trafficking)

Mr James Cox, Christian Children's Fund, Advocacy Officer

Ms Lee-May Saw, Member, Australian Women Lawyers

Project Respect

Ms Kathleen Maltzahn, Director

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48

Attorney-General's Department

Ms Catherine Hawkins, A/g Assistant Secretary, International Crime Branch

Ms Karen Bishop, Senior Legal Officer, Criminal Law Branch

Ms Kathryn Ovington, Senior Legal Officer, International Crime Branch

Department of Immigration, Multicultural and Indigenous Affairs

Mr Vince McMahon, Executive Coordinator, Border Control & Compliance Division

Ms Sharon Watts, A/g Director, Migration Fraud & Investigation Section

Australian Federal Police

Federal Agent Grant Edwards, Coordinator Transnational Targetting

Federal Agent Bruce Hill, Manager, Border

102

The Senate

Legal and Constitutional Legislation Committee

Provisions of the Criminal Code Amendment

(Suicide Related Material Offences) Bill 2005

May 2005

103

© Commonwealth of Australia 2005

ISBN 0 642 71510 6

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra

104

MEMBERS OF THE LEGISLATION COMMITTEE Members Senator Marise Payne, Chair, LP, NSW Senator the Hon. Nick Bolkus, Deputy Chair, ALP, SA Senator Brian Greig, AD, W A* Senator Joseph Ludwig, ALP, QLD Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member * Senator Aden Ridgeway, AD, NSW to replace Senator Brian Greig for matters relating to the Indigenous Affairs portfolio * Senator Andrew Bartlett, AD QLD to replace Senator Brian Greig for the inquiry

into the provisions of the Migration Litigation Reform Bi112005 .

Participating Members Senator the Hon. Eric Abetz, LP, T AS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, WA Senator George Brandis, LP, QLD Senator Bob Brown, AG, TAS Senator Geoff Buckland, LP, QLD Senator George Campbell, ALP, NSW Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Hon R Colbeck, LP, TAS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, W A

Senator Christopher Evans, ALP, WA Senator the Hon. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Harradine, IND, T AS

Secretariat Mr Owen Walsh Secretary

Senator John Hogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Linda Kirk, ALP, SA Senator Susan Knowles, LP, WA Senator Ross Lightfoot, LP, WA Senator Kate Lundy, ALP, ACT Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NPA, VIC Senator Jan McLucas, ALP, QLD Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator Aden Ridgeway, AD, NSW Senator the Hon. Nick Sherry, ALP, T AS Senator Ursula Stephens, ALP, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Watson, LP, TAS

Ms Julie Dennett Ms Sophie Power Ms Marina Seminara Mr Mark Stevenson Ms Judith Wuest

Principal Research Officer Principal Research Officer Executive Assistant (to April 2005) Estimates Officer

Suite Sl.61 Parliament House

Executive Assistant (from May 2005)

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au

iii

105

106

TABLE OF CONTENTS

Members of the Legislation Committee

Recommendations

111

Vll

Abbreviations lX

CHAPTERl

INTRODUCTION

Background

Conduct of the inquiry

1

1

Acknowledgement 2

Note on references 2

CHAPTER2 J

OVERVIEW OF THE BILL 3

Background 3

Significant provisions of the Bill 3

CHAPTER3 7

KEYISSUES 7

Policy justification of the Bill- to protect the 'vulnerable' 7

Arguments that the Bill is uncalled-for and misguided 8

Arguments in favour of the Bill and its policy objectives 12

The extent to which the Bill unduly impacts on free speech 14

Definitional issues 21

Inconsistency with Customs Regulations 24

The committee's view 25

AUSTRALIAN DEMOCRATS DISSENTING REPORT 29

SENATOR BRIAN HARRADINE- QUALIFYING COMMENTS 33

107

APPENDIX 1 49

SUBMISSIONS RECEIVED 49

APPENDIX 2 51

WITNESSES WHO APPEARED BEFORE THE COMMITTEE 51

Canberra, Thursday 14 April 2005 51

108

RECOMMENDATIONS

Recommendation 1

3.1 The committee recommends that proposed paragraphs 474.29A(1)(b) and (c) be amended so that the phrase 'counsels or incites suicide' reads 'counsels or incites another person to commit or attempt to commit suicide'.

Recommendation 2

3.1 The committee recommends that the Bill be amended to insert a requirement that, as soon as practicable after the end of 12 months from the date of the Bill's commencement, the Attorney-General must cause to be laid before each House of Parliament a comprehensive report on the operation of proposed subsections 474.29A(3) and (4).

Recommendation 3

3.2 Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

Recommendation 4

3.3 The committee supports and calls for the implementation of additional broader research, strategies, resourcing and policy initiatives by the Federal Government and state/territory governments in order to address jointly and consistently issues relating to suicide in Australia.

vii 109

110

the Atheist Foundation

the Bill

the Criminal Code

Customs Regulations

the Department

EFA

EM

the Law Council

Migration Act

VEST

VESV

the 2004 Bill

ABBREVIATIONS

Atheist Foundation of Australia

Criminal Code Amendment (Suicide Related Material Offences) Bill 2005

Criminal Code Act 1995

Customs (Prohibited Imports) Regulations 1956 and Customs (Prohibited Exports) Regulations 1956

Attorney-General's Department

Electronic Frontiers Australia

Explanatory Memorandum

Law Council of Australia

Migration Act 1958

Voluntary Euthanasia Society ofTasmania

Voluntary Euthanasia Society ofVictoria

Criminal Code Amendment (Suicide Related Material Offences) Bill 2004

ix

111

112

CHAPTERl

INTRODUCTION

Background

1.1 On 16 March 2005, the Senate referred the provisions of the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 10 May 2005.

1.2 The Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 contains offences which were originally introduced in the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004. After its introduction into the Senate, the Federal Government decided to split the original bill in two, and then reintroduced the two separate bills into the House of Representatives as the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) (No. 2) 2004 and the Criminal Code Amendment (Suicide Related Material Offences) Bill2004.

1.3 The latter bill (the 2004 Bill) was briefly debated in the House of

Representatives on 11 August 2004 but did not reach the Senate before the prorogation of the 40th Parliament. However, the provisions of the 2004 Bill had been referred to the committee before the prorogation of Parliament, with the committee calling for and receiving submissions before it had to discontinue the inquiry at that time.

1.4 The 2005 Bill replicates the 2004 Bill, but contains additional provisions which will insert new subsections 474.29A(3) and (4) into the Criminal Code Act 1995 (the Criminal Code).

Conduct of the inquiry

1.5 The committee advertised the inquiry in The Australian newspaper on 23 March 2005, and invited submissions by 1 April 2005 . Details of the inquiry, the Bill and associated documents were placed on the committee's website. The committee also wrote to over 60 organisations and individuals.

1.6 The committee received 31 submissions, including several supplementary submissions. 21 of these submissions had been received in relation to the 2004 Bill but, at the request of their authors, were treated as submissions to the current inquiry. Submissions were placed on the committee' s website for ease of access by the public.

The submissions are also listed at Appendix 1.

1. 7 The committee held a public hearing in Canberra on 14 April 2005 . A list of witnesses who appeared at the hearing is at Appendix 2. Copies of the relevant Hansard transcript are available through the Internet at http ://aph.gov.au!hansard.

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Acknowledgement

1.8 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.9 References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

114

CHAPTER2

OVERVIEW OF THE BILL

2.1 This chapter briefly outlines the main provisions of the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 (the Bill).

Background

2.2 Suicide or attempted suicide is no longer an offence in Australia. However assisting or encouraging another person to commit suicide is an offence in all states and territories. In addition, to assist or encourage another person to attempt to commit suicide is an offence in the Australian Capital Territory, Northern Territory, New South Wales, South Australia and Victoria. Further, except in Victoria, a person can be prosecuted for 'attempt' if they have unsuccessfully assisted or encouraged suicide. 1

Significant provisions of the Bill

2.3 The Bill will insert three new offences into the Criminal Code dealing with use of a carriage service to access, transmit or otherwise make available suicide­ related material; and possession, production, supplying or ohtaining suicide-related material for use through a carriage service.2 The proposed offences are specifically

aimed at use of the Internet, email and other online applications and are intended to cover the range of activities that a person can engage in when using these. 3

2.4 Proposed subsection 474.29A(l) will make it an offence for a person to use a telecommunications/carriage service to access, transmit, make available, publish or distribute material that directly or indirectly counsels or incites suicide, with the intention that they or another person will use the material to counsel or incite suicide.

2.5 Proposed subsection 474.29A(2) will make it an offence to use a telecommunications/carriage service to directly or indirectly promote or provide instruction on a particular method of committing suicide, with the intention that the material be used to promote or provide instruction on that method ofsuicide.4

2.6 Due to the application of section 5.6 of the Criminal Code, the fault element of 'recklessness' applies to the element of the offences relating to whether the material

Angus Martyn, Parliamentary Library, Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, Bills Digest No. 133 2004-05, p. 3.

2 Explanatory Memorandum, p. 1.

3 Explanatory Memorandum, p. 3.

4 Explanatory Memorandum, p. 2.

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Page4

in question directly or indirectly counsels or incites suicide or promotes or provides instruction of a particular method of committing suicide. 5

2.7 The term 'material' is defmed in section 473.1 of the Criminal Code as including 'material in any form, or combination of forms, capable of constituting a communication'.

2.8 According to the Explanatory Memorandum (EM) to the Bill, the offence under proposed section 474.29A is not intended to capture Internet material that advocates or debates law reform on euthanasia and/or suicide-related issues. Similarly, the intention is that Internet material dealing with suicide-related research and suicide prevention or support material will generally not be caught by the offences. Therefore proposed subsections 474.29A(3) and (4) expressly state that if a carriage service is used to engage either in public discussion or advocacy of law reform with respect to euthanasia or suicide, no offence is committed if the person does not intend the material to be used to counsel or incite suicide, or to promote or provide instruction on a method of committing suicide. 6

2.9 The third proposed offence is contained in proposed subsection 474.29B(1 ). An offence will be committed if a person possesses, controls, produces, supplies or obtains suicide-related material with the intention that the material be used by that person or another person to commit an offence against proposed section 474.29A (which is described above). 7 This third proposed offence is intended to cover a broad range of preparatory conduct undertaken with the intention to commit a primary offence. Proposed subsection 474.29B(2) provides that a person can be found guilty of an offence against proposed subsection 474.29B(1), even if it is impossible to commit an offence under proposed section 474.29A (an offence of attempt).

2.10 The maximum penalties for the proposed offences are 1000 penalty units, which is $110,000 for individuals or $550,000 for a body corporate. 8

2.11 The proposed offences are intended to complement the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958 (the Customs Regulations). These prohibit, amongst other things, the physical importation and exportation of documents that promote the use of a device designed

or customised to be used by a person to commit suicide (that is, a suicide kit), counsel or incite a person to commit suicide using a suicide kit, or instruct a person how to commit suicide using a suicide kit. 9

5 Explanatory Memorandum, p. 4.

6 Explanatory Memorandum, p. 4.

7 Explanatory Memorandum, p. 4.

8 Explanatory Memorandum , p. 3.

9 Explanatory Memorandum, p. 3.

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Page5

2.12 Specific defences are not included in the Bill. The EM states that this 'is because no-one should have a defence available to them if they intend, in engaging in particular conduct, to, for example, incite a person to commit suicide.'10

10 Explanatory Memorandum, p. 3.

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118

CHAPTER3

KEY ISSUES

3.1 Submissions to the inquiry were clearly divided between those expressing support for the Bill and its policy objectives, and those expressing strong opposition to it. However, the great majority of submissions and witnesses objected to the Bill in its entirety. This chapter discusses the key issues raised in the course of the committee's inquiry, including:

• the proposition that the Bill is required in order to protect the 'vulnerable';

• arguments that the measures contained in the Bill are uncalled-for, misguided and counterproductive;

• arguments in favour of the Bill and its policy objectives;

• the extent to which the Bill will impact unduly on free speech and on personal and private communications between individuals, and access to information;

• concerns over terms and definitions used in the Bill; and

• the Bill's inconsistency with the Customs Regulations.

Policy justification of the Bill- to protect the 'vulnerable'

3.2 The policy aim or objective behind the Bill is to protect vulnerable people who may be suicidal or have suicidal tendencies. As the Attorney-General argued in his Second Reading Speech:

There is a real need to protect vulnerable individuals from people who use the internet with destructive intent to counsel or incite others to take their own lives. The internet contains readily accessible sites and chat rooms that positively advocate suicide and discourage individuals from seeking psychiatric or other help. Many of these sites also provide explicit

instructions on methods of committing suicide. There have been instances where internet chat rooms have been used by a person, or even a group of persons, to urge another to commit suicide. Recent studies have shown that in some cases such internet chat room discussions have led to a person

attempting suicide, and sometimes successfully. This research points to evidence that vulnerable individuals were compelled so strongly by others to take their own lives that they felt to back out or seek help would involve losing face. 1

3.3 The Attorney-General's Department (the Department) advised the committee that the Bill's purpose was:

The Hon Philip Ruddock MP, Attorney-General, Second Reading Speech, House of Representatives Hansard, 10 March 2005, pp 4-5.

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Page8

1) to complement Customs Regulations [that prohibit]. .. the import and export of suicide kits and associated instructions.

After the introduction of the Customs Regulations, the Internet was used to post information on how to make and use suicide kits in an effort to circumvent the intention of these Customs offences. This Bill is intended to criminalise this process.

2) to proactively respond to media reports and research studies which suggest that certain information about suicide on the Internet may encourage suicidal behaviour.

Web sites that provide chat rooms or bulletin boards devoted to discussion about suicide, in particular, have the potential to influence suicidal behaviour. 2

3 .4 At the hearing, representatives from the Department conceded that 'it is very clear that there was not a detailed scientific study or an extensive research project' which had prompted the Bill.3 Rather, the Bill appears more a reaction in part to perceived community concern over the risks posed by the Internet. This was borne out by other witnesses and submissions which provided the committee with examples of websites and Internet chat rooms containing detailed descriptions of methods of committing suicide that reportedly have resulted in suicides or attempted suicides overseas.

4

Arguments that the Bill is uncalled-for and misguided

3.5 The committee also received considerable evidence to the effect that the Bill was misguided and/or that, in practice, it would not achieve its stated aim of protecting the vulnerable.

3.6 It was argued that the Bill was misdirected in that the Federal Government had merely sought to prohibit access to information about suicide rather than address the underlying causes of suicide. For example, the .Law Society of New South Wales argued that the Bill 'will not operate to protect vulnerable people who are at risk of committing suicide' because:

(t)he major factor leading to suicide is despair, which can be triggered by tragedy such as personal despondency, loneliness, depression, mental illness, family breakdown or death of a loved one, poverty, unemployment, fmancial ruin, substance abuse or the chronic pain of a terminal illness. People at risk, in particular young people, require far more pro-active

2 Submission 31, p. 5.

3 Committee Hansard, 14 April2005, p. 29 .

4 For example, see Mr Graham Preston, Right to Life Australia, Committee Hansard, 14 April 2005 , pp 1-2.

120

measures to address the causes of suicide and to help them rebuild their lives. 5

Page9

3.7 It was also argued that the Bill was misdirected in that the risk that the Internet, or material on the Internet, posed to so-called vulnerable people has been overstated. For example, the Atheist Foundation of Australia (the Atheist Foundation) argued that anecdotal evidence - such as that put forward in support of the Bill - is not enough to justify the enactment of criminal laws. Further, the Atheist Foundation stated that its own 'investigations into the rationale behind the proposed Bill have failed to find the necessary evidence for its implementation'. 6

3.8 Other submitters stressed that the premise of the Bill in specifically targeting the Internet was incorrect as the rate of suicide in Australia has decreased since the Internet became publicly accessible in Australia in 1994.7 Electronic Frontiers Australia (EF A) submitted that the Bill would not achieve any reduction of suicide rates in practice:

EF A considers it extremely unlikely that criminalising use of the Internet to access, and/or make available, the subject material will make the slightest difference to the incidence of suicide in Australia and certainly not by the most common methods of hanging and motor vehicle exhaust. 8

3.9 Dr Philip Nitschke from Exit International made a similar argument:

The point that I would keep coming back to is the fact that suicide rates have dropped in the very same period that the internet has become more increasingly used. So in a sense we seem to be complaining about or blaming the internet for something which has got no relationship, or at least a very questionable relationship, with what is a very positive prognostic trend which we have noticed in suicide rates amongst the various age groups. 9

3.10 Mr Kep Enderby QC from the Voluntary Euthanasia Society of New South Wales also advised the committee that:

I disagree ... that suicide is a major problem in Australia, and that young people are especially prone to suicide. That is just not correct. It is wrong . The opposite is true: it is the elderly who are most attracted to the idea of suicide as an escape from the inevitable problems and discomforts, and

sometimes pain, of old age. I think I can speak with some feeling, because I am about to enter my 80th year. I do not regard myself as particularly vulnerable, as has often been expressed here by earlier speakers about the

5 Submission 18, pp. 1-2.

6 Submission 23, p. 1.

7 See, for example, Electronic Frontiers Australia, Submission 28, p. 4.

8 Submission 28, p. 5.

9 Committee Hansard, 14 April 2005, pp 13-14.

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elderly. The rate of suicide in Australia is only two per cent of all Australian deaths, with by far the greatest majority of those suicides being voluntary euthanasia type deaths. 10

3.11 Similarly, the West Australian Voluntary Euthanasia Society submitted that 'the largest number of suicides in the country is among persons of over 7 5 and the largest proportion of those die by hanging'. 11 The Voluntary Euthanasia Society of Queensland made a similar point:

According to the Australian Bureau of Statistics each week 3 persons over the age of 73 commit suicide in the most horrendous ways possible, and all because they were unable to source or were deprived of meaningful information and help. 12

3.12 Others also argued that the proposed prohibition on access to information would be counterproductive and only compound the problem of suicide. Dr Nitschke from Exit International argued that:

One of the ways one protects vulnerable individuals is to treat them with respect and to engage in legitimate discussion with them. You do not respect a society or individuals within that society by restricting them from information which you deem to be adversely helpful to them. Our suggestion is the one that I referred to earlier: when people are able to talk openly about this issue, their health indices improve. They feel less anxious, less worried and they go on to live longer lives. Happier people have access to good information and to sit around and try to restrict access to information, acting as some form of judge about what is deemed to be in their best interests, I feel is the wrong way for our society to be heading. 13

3.13 Mr Neil Cook also argued that measures such as those contained in the Bill will actually exacerbate the suicide problem in Australia:

There are those who will promote this legislation on the grounds of increased teenage suicide statistics; however that is a weak and false premise upon which to base a case, especially when such statistics should rightly be addressed by greater collective societal involvement as opposed to legislative stop gaps such as this Bill. .. There are other ways and means to address these issues. Legislation outlawing the right of persons to seek their own exit from this life, with grace and dignity, will simply drive the proponents underground. The practice will not cease. It will simply become more difficult, for those who so desire, to achieve creating more pain and misery for those people, and ultimately placing a wholly unnecessary burden on the rest of society.14

10 Committee Hansard, 14 April2005, p. 16.

11 Submission 4, p. l.

12 Submission 15, p. l.

13 Committee Hansard, 14 Apri12005, p. 14.

14 Submission 22, p. l.

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3.14 The New South Wales Council of Civil Liberties suggested that, if the purpose of the Bill is to protect the 'vulnerable', then that objective would be better achieved through appropriate regulation, not criminalisation:

By regulating who has access to this information, it might be possible to identify vulnerable individuals and ensure they receive appropriate counselling. 15

3 .15 And further:

Regulation will also be a useful mechanism for ensuring that people who are medically certified as terminally-ill can lawfully access the information. Regulation will also help ensure that only people over a certain age can access the information, to inform themselves appropriately.16

3.16 Ms Irene Graham from EF A told the committee that she was unsure who the 'vulnerable' individuals to be protected by the Bill actually are:

I certainly hope that the word 'vulnerable' is referring to, for example, depressed teenagers, as distinct from adults wishing to make a rational decision about their end of life options ... [O]ur view, as a general civil liberties position, would be that adults should have rights to access the kind of information and counselling that this bill seeks to prohibit. So if the vulnerable individuals that the bill is referring to are terminally ill people and older people that are wanting to know information, we do not consider that they should necessarily be considered to be vulnerable and so be prevented from being able to obtain information. As far as whether it will actually achieve the objective of protecting whomever the vulnerable people are, we do not believe it is going to do that either because we do not see how this Australian legislation can do anything about the information on web sites all over the world. 17

3.17 Critics of the Bill made much of the fact that it would not, and could not, prevent Australians from accessing suicide related material or chat rooms on websites hosted outside Australia. 18 This, it is argued, will render the Bill meaningless. Ms Irene Graham from EF A told the committee that:

[The Bill] will not have any effect on international communication except to the extent of criminalising Australians that are participating in any such international communication. This bill will not stop the amount of information that is on the internet on overseas sites. To the best of my knowledge, there is no way that any ISP can block access to material on

international sites short of the development of the great Australian firewall, which was discussed back in 1999 and 2000 with regard to the issue of

15 Submission 27, p. 3.

16 Submission 27, p. 3.

17 Committee Hansard, 14 April2005, p. 23 .

18 See further the discussion at para 3.22.

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blocking access to p*rnography. Nothing has changed since 1999-2000. It is still simply impractical to do that. 19

3.18 The Atheist Foundation of Australia agreed:

The Internet is a World-Wide-Web with its benefits of instantaneous and voluminous information sharing capacity not controllable by any one country. To attempt this action is not only futile in the long term, but will negatively affect non-targeted persons. 20

Arguments in favour of the Bill and its policy objectives

3.19 The Bill and its objectives also received strong support from several groups. For example, Mr Richard Egan from the Coalition for the Defence of Human Life told the committee that the Bill 'addresses in a useful way the threat to innocent and vulnerable people posed by material that counsels or incites suicide or promotes or instructs in methods of suicide.'21 Mr Egan explained that, in his view, 'innocent and vulnerable' means:

... anyone ... who has access to a carrier service and who has a suicidal predisposition through depression or facing the particular stresses in life that lead people to commit suicide. They may be people of any age or condition in society.Z2

3.20 Mr Graham Preston from Right to Life Australia agreed:

We think that that should be taken very broadly. Simply by definition, it is those who are open to the possibility of committing suicide .. . 20 per cent of Australians have indicated that they have thought at times that life is not worth living and 10 per cent have seriously considered suicide. That would obviously take in a large number of people, presumably right across the spectrum. The very fact that a person may consider life not worth living or seriously consider suicide, we would see that as making them vulnerable. 23

3.21 Salt Shakers agreed that the Bill was a positive move:

The strategy of making the dissemination of suicide-related material via the internet an offence is a positive move. The internet is often used by the younger generation, particularly to access chat rooms and an ' online community'. The promotion of suicide via websites/chat rooms allows young people to have an easy access to unhelpful and potentially dangerous information. 24

19 Committee Hansard, 14 April2005, p. 22.

20 Submission 23, p. I.

21 Committee Hansard, 14 April2005, p. 2.

22 Committee Hansard, 14 April2005, p. 4.

23 Committee Hansard, 14 April 2005, p. 8.

24 Submission 26, p. 3.

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3.22 While acknowledging that there has been a reduction in suicide rates since the availability of the Intemet,25 and that 'no-one should walk away from this bill thinking that suicide prevention has been tackled in some major way',26 Mr Egan from the Coalition for the Defence of Human Life argued that the Bill is a worthy measure that could prove useful in preventing at least some suicides in Australia:

All we are saying is that there is evidence in some psychiatric case histories and in general media reports that some individuals have committed suicide after following detailed instructions from either web sites or chat rooms on the internet. We are not making a statistical argument for this at all.27 -

3.23 Mr Preston from Right to Life Australia drew an interesting analogy between suicide and policies relating to cigarette advertisem*nt:

Our organisation does not take lightly supporting a bill which is intended to prohibit access to information. However, we would see the situation as being similar to that of advertising cigarette smoking. Smoking is not illegal but it is generally accepted that because of the harm it causes it is

appropriate not to allow it to be advertised. In the same way suicide is not illegal but, due to the harm that promotion of it can cause, we believe is appropriate for this bill to prohibit promotion of it through carriage services, particularly the internet.28

3.24 Some supporters of the Bill also argued that the Bill could be strengthened further in order to better achieve its aim. For example, the Festival of Light Australia argued that, as currently drafted, the Bill contains a loophole in relation to suicide promotion websites hosted overseas which should be rectified?9 Mr Egan from the

Coalition for the Defence of Human Life contended that 'once the URLs of such sites are drawn to the attention of [Australia-based] internet service providers there [should be] a penalty on them if they do not block access to those sites'. 30

Without such a

provision, Mr Egan suggested that the Bill's effectiveness 'may be more symbolic than real'. 31

3.25 Mr Egan also suggested that the Bill could be bolstered further by including specific provisions regarding advertising for sale of supply devices designed or customised to be used by a person to commit suicide, or the advertising of meetings at

25 Committee Hansard, 14 Apri12005, p. 5.

26 Committee Hansard, 14 Apri12005, p. 3.

27 Committee Hansard, 14 April2005, p. 5.

28 Committee Hansard, 14 April2005, p. 7.

29 Submission 29, p. 2.

30 Committee Hansard, 14 April2005, p. 3.

31 Committee Hansard, 14 April2005, p. 3.

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which instructions and methods of suicide are given. 32 In its submission, the Australian Christian Lobby suggested a similar amendment to the Bill. 33

The extent to which the Bill unduly impacts on free speech

3.26 The committee received considerable evidence in relation to the impact of the Bill on free speech; on personal and private communications between individuals; and on access to and possession of information.

Public discussion or debate about euthanasia

3.27 A number of submissions expressed concern that the Bill impacts adversely on free speech and the implied constitutional right to freedom of political communication. It was submitted that the Bill's offence provision could encompass debate about law reform and that, to the extent that such communication is protected by the implied freedom of political communication, the Bill could be struck down as being unconstitutional. 34

3.28 However, a representative from the Department told the committee that the Department did not agree with that assessment:

What has to be borne in mind in addition to anything else is that these are criminal offences. If there are ambiguities in the provisions they would be read by the court, in the normal order of construction, in favour of the defendant. When you see a provision like this, which is a clear indication of the intention of parliament, then the courts are not going to look for fine distinctions and work their way through it. So I do not share those views. 35

3.29 Nonetheless, the committee received considerable evidence indicating widespread concern in this regard. For example, the Voluntary Euthanasia Societies in each state argued that the Bill would seriously impinge on their activities in trying to legitimately change the law in relation to voluntary euthanasia. 36

3.30 The Voluntary Euthanasia Society of Tasmania (VEST) argued that, since suicide is not a crime, it is reasonable for any adult to seek information in relation to it. That is, '(i)t should not be illegal to supply information to rational responsible adults regarding a legal act regardless of how it will be used.'37 VEST also submitted

32 Committee Hansard, 14 April2005, p. 2.

33 Submission 13, p. 1.

34 For example, see Electronic Frontiers Australia, Submission 28, pp. 7-8 and New South Wales Council for Civil Liberties, Submission 27, pp. 4-5.

35 Committee Hansard, 14 April 2005, p. 29.

36 For example, see Voluntary Euthanasia Society of Tasmania, Submission 6.

37 Submission 6, p. 2.

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that the greatest impact of the Bill will be upon poorer elderly, frail and/or incurably suffering people who are not familiar with the legal system.38

3.31 The Voluntary Euthanasia Society of Victoria (VESV) argued that in order for it to inform and influence opinion, both in general and within the political arena, it is necessary to encourage debate about voluntary euthanasia. Such debate could include arguments about the merits of allowing the self-administration of lethal substances by a rational, terminally ill person in order to relieve their suffering. VESV was also of the view that proving that one did not have the requisite intention not to encourage suicide while at the same time discussing the possibility of medically assisted dying would be difficult. 39

3.32 In evidence, Dr Nitschke from Exit International contended that the Bill has the ability to seriously threaten any ability to openly debate suicide and related issues.40 He explained that the addition of subsections 474.29A(3) and (4) to the Bill did little to allay his concerns in relation to the practical reality of dealing with these issues:

... the fundamental concerns we have [is] that the border between a discussion of a so-called method and the necessary discussion about a political change in a way to achieve that political change is exceedingly grey. So I do not fmd much reassurance in that particular statement [in those subsections] which seems to, if you like, protect the legitimate political process-and the process of discussing it in the broader community-that might be involved in this social issue, but at the same time try to delineate between that and what I see as the inevitable next question that I will get. 41

3.33 Dr Nitschke also posed some interesting questions:

Again, where does one draw the line here? It is almost impossible to disentangle legitimate discussions about legal changes to the voluntary euthanasia situation in this nation and the very specific question that people almost invariably go on to ask: 'If the law won't change, how do I get an option for myself personally?' So a person who one minute is talking about how they might go and lobby their politicians, the next minute is asking you: 'I've got 50 morphirle tablets here. Ifl take them, will I die?' At which point do I hang up the phone? I am suggesting that at least this sort of

legislation has the ability to seriously threaten any ability to openly politically debate this important social issue. 42

38 Submission 6, p. 4.

39 Submission 11, p. l.

40 Committee Hansard, 14 April 2005, p. 12.

41 Committee Hansard, 14 April2005, p. 13 .

42 Committee Hansard, 14 April2005, p. 12.

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3.34 Ms Sandra Milne, who informed the committee that she had been diagnosed with inoperable cancer, emphasised the importance of informed debate in relation to suicide:

I believe that an informed debate about suicide results in a reduction in the number of suicides in this country. Persons aware of all their options will often extend their life by not acting prematurely. Unsuccessful suicide attempts often lead to unintended physical or mental harm. Many elderly people commit suicide in the most horrendous ways, and all because they were unable to source or were deprived of meaningful information and help. It is likely that, had these people been able to discuss their intention, some lives would not have been lost. For some, an attempt at suicide is a cry for help. This law would ensure that that cry would not be heard. Indeed with the risk of prosecution this law brings, it is more likely to ensure that attempts to suicide are successful. 43

3.35 However, the committee also received evidence from those who disagreed with this view. For example, Dr David M Gawler argued that the Bill is very precise in its offences and, since it 'quite plainly places no limitation on political communication regarding laws relating to euthanasia or suicide',44 it is wrong 'to provide special privileges for the advocates of euthanasia or suicide'. 45

3.36 The Department's response to concerns raised in relation to the 2004 Bill regarding the criminalisation of information protected by the implied right to freedom of political communication was to insert the two clarifying provisions. Proposed subsections 474.29A(3)-(4) provide that a person does not commit an offence merely because they use a carriage service to engage in public discussion or debate about euthanasia or suicide or advocate reform of the law in relation to euthanasia or suicide. The Department explained:

There had been concern raised in the submissions to this Committee in its consideration of the 2004 version of the Bill that the Bill could be applied to organisations that have as their objective the reform of the law on voluntary euthanasia but as a corollary, discussed different methods of suicide and suicide statistics in order to make their case. It is considered that a person who engages in genuine debate over euthanasia related law reform or suicide would not have the requisite intent. 46

3.37 However, for some this provided little reassurance. For example, Ms Irene Graham from EF A told the committee that in her view the additional clauses are 'completely worthlesst47 since they merely restate the offence provisions:

43 Submission 14, p. l.

44 Submission 12, p. l.

45 Submission 12, p. l.

46 Submission 32, p. 7.

47 Committee Hansard, 14 April2005, p. 24.

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[T]hey [do not] say anything different to what the offences themselves say. We think the offences themselves say 'will interfere with political communication'. I am not sure whether that was clear. To us, the exception that has been put in there simply will not work because it is still predicated on the intent of the person. When you look at the offences, the intent of the person depends on whether there was a substantial risk that something may happen or that something may happen in the ordinary course of events, because of the default fault elements in the Criminal Code.48

3.38 She contended further:

To us, the bill is saying on the one hand that political communication will not be interfered with but then on the other it is saying, 'Provided that you did not intend to cause counselling or inciting or promoting to happen.' We believe it will simply chill freedom of political expression and discussion. Whether it will actually ban it is open to question, because it depends on the extent to which law enforcement agencies are going to run around trying to enforce this and, of course, on what a court decides about the specific wording of the legislation. But, to us, it will at the very least chill political communication. 49

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3.39 The committee is aware of the suggestions from Professor George Williams in relation to how the original Bill might be amended to protect the Bill from possible unconstitutionality, including the insertion of a savings clause that might indicate that the Bill does not apply to the extent that it limits political communication.50 The

committee notes that, in order to address concerns about its impact on the implied right to political communication, the Government has altered the Bill in line with Professor Williams' suggestions.

Personal and private communications between individuals

3.40 Several submissions and witnesses expressed concern that the Bill would impact negatively on the ability of individuals to engage in private communications via electronic media since the offences in the Bill would apply to personal and private communications by means of telephone calls and email, including communications between friends or relatives, or discussions in the context. of a doctor-patient relationship.

3.41 Ms Irene Graham from EFA articulated this point as follows:

... under the definition of 'communication' in the Criminal Code Act currently, the proposed offences will definitely apply to personal and private communications by means of telephone and email between two friends or relatives. We are absolutely opposed to parliament legislating to

48 Committee Hansard, 14 April2005, p. 24.

49 Committee Hansard, 14 Apri12005, pp 24-25 .

50 Submission 21, p. 2.

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prohibit individuals from communicating one-to-one by telephone or email. 51

3.42 Dr Philip Nitschke from Exit International held a similar view:

We should be very clear: we are not talking just about infonnation freely available for anyone who can work a keyboard; we are talking about the very personal communications that go on here, sometimes in the privileged context of doctor-patient relationships, with some protections because of that, but a large number which are just consultations between private individuals in society. We should not, I suggest, be introducing legislation which strikes right at the heart of that ability for people to access information. 52

3.43 Further, Dr Nitschke argued that the Bill:

... has the ability to very seriously restrict essential communication between Australians-and I am not just talking about doctor-patient communications; I am talking about communications between sons and parents, between parents and parents and between individuals in Australia who have a very reasonable right to be able to openly communicate with each other about what we would describe as end of life options. This legislation has that ability. 53

3.44 In the submission from Gilbert and Tobin Centre of Public Law, Professor George Williams also argued that, since the Bill criminalises not only public or mass communication regarding suicide, but also private communications between individuals, it would 'have a significant impact on the capacity of individuals who are seriously or terminally ill to access information about suicide'. 54 Specifically:

This raises an issue which merits consideration: the degree to which we wish to protect both freedom of speech which falls outside the definition of 'political communication', and the right of citizens to access information and make informed choices. We are concerned that legislation such as this, in limiting communication about an activity that is not illegal and in regulating the subject matter be1ond existing State law, may go too far in restricting free communication.5

3.45 The New South Wales Council for Civil Liberties was strongly opposed to the Bill's failure to recognise the distinction between public and private information exchange:

51 Committee Hansard, 14 April2005, p. 21.

52 Committee Hansard, 14 April2005, p. 11.

53 Committee Hansard, 14 April2005, p. 12.

54 Submission 21, p. 2.

55 Submission 21, p. 2.

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... Parliament has no place intervening in a private conversation between two consenting adult citizens discussing euthanasia options over the telephone. 56

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3.46 Dr Nitschke also explained his views in relation to the specific impact on doctor-patient relationships:

There are certain protections that can be implied and accessed in the doctor-patient confidentiality relationship. The problem we have with this legislation is that, because it relates to electronic communications or carriage services, it specifically impacts on the ability to talk on the phone to one's patients. As far as I know, there is no other proposed legislation or existing legislation that prohibits such discussions. This legislation would seemingly specifically target the ability of doctors to communicate on the phone with patients if the question of suicide should arise. 57

3.4 7 Dr Nitschke expressed the fear that the Bill could have a serious impact on the work of Exit International because of the capacity to intrude into private and personal communications:

.. .it does seem perfectly plausible that, if such a law were to pass and if someone were to, for example, suspect that Exit's work would require specific surveillance because we talk a lot to people who wish to think about end of life options, this legislation might then be used to seek and obtain the necessary abilities to tap phones. So the legislation has the ability to provide that next step. 58

3.48 While a representative from the Department told the committee at the public hearing that the proscription of private communications between individuals was not part of the publicly-stated or direct intention of the Bill, 59 in its response to questions on notice the Department maintained that personal and private conversations over the telephone or email should come within the ambit of the Bill.

3.49 The Department's justification for this approach was expressed as follows:

The Bill has the same application as the related telecommunications offences in the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act 2004. Mobile phone text messaging and email has the potential to transmit the same sort of information as contained on the Internet. It was also intended that these offences address all material

transmitted by way of a carriage service, including personal telephone and email conversations. 60

56 Submission 27, p. 5.

57 Committee Hansard, 14 April 2005, p. 11.

58 Committee Hansard, 14 April2005, p. 12.

59 Committee Hansard, 14 Apri12005, p. 26.

60 Submission 32, p. 8.

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3.50 Further:

The aim of the Bill is to protect the vulnerable in society from this sort of influence in a moment of crisis and it is irrelevant if the incitement or instruction comes through the Internet or by way of a personal phone call. If the intent was to counsel or incite suicide or to promote or provide instruction on a particular method of committing suicide, the Government intends this conduct to be captured by these offences. 61

3.51 The Department pointed out that state and territory laws currently capture instances where a person counsels or incites another person during a private telephone conversation or email exchange to commit suicide. These laws have even broader application in this regard since they would also capture private face-to-face conversations held in a private residence and which counsel or incite the suicide or attempted suicide of another. 62

3.52 In response to questioning by the committee in relation to the criminalisation of counselling over the telephone, particularly in the context of doctor-patient communications, the departmental representative stated that:

[The Bill] would capture it if the counselling involved an incitement to commit suicide. If a doctor, in the course of that telephone communication, were to provide information about a method of suicide which encouraged the use of that method it would be caught. 63

Impact on access to and possession of information

3.53 Several submissions and witnesses opposed the Bill's criminalisation of access to and possession of information about suicide, particularly where that information is never passed on or where there is no attempt at suicide.64

3.54 Mr Anthony and Mrs Beryl SacHer argued that:

61 Submission 32, p. 8.

62 Submission 32, p. 8.

63 Committee Hansard, 14 April 2005, p. 27.

64 For example, see New South Wales Council for Civil Liberties, Submission 27, p. 3; Electronic Frontiers Australia, Submission 28, p. 11. The COIIliilittee also notes that there are inconsistencies with state and territory legislation in relation to accessing and possessing suicide-related information. For example, under section 31 C of the NSW Crimes Act, a person must actually 'aid or abet' or 'incite or counsel' another person to commit or attempt suicide . Therefore, obtaining information in hard copy form from a library (perhaps with the intention of passing it to a terminally ill relative) would not be an offence under NSW law until actual assistance or incitement occurs (and suicide or an attempt results). Obtaining exactly the same material from the Internet (with the intention of passing it to a terminally ill relative for their use) would be an offence under the Bill. See further Angus Martyn, Parliamentary Library, Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, Bills Digest No . 133 2004-05, p. 7.

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An exchange of knowledge may have no 'intent' other than to share facts among those who want them. This bill attacks the innocent research of rational people intent on conducting their lives according to their own rights, with no intention of harming others. 65

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3.55 The Department's response to such concerns was that the Bill does not criminalise simple access to or possession of material and that for a criminal offence to be proven there must also be an intention to use the material for a particular purpose, namely to commit an offence against proposed section 474.29A.66

Definitional issues

3.56 Some submitters, in particular EFA, raised a number of issues in relation to certain elements of the offences and some of the definitions used in the Bill. These included the following:

• the application of the fault element of recklessness to the question of whether material 'incites suicide'; and

• the use of the words 'counsels or incites' in the proposed offence provisions.

Recklessness

3.57 In relation to the fault element of recklessness, Ms Irene Graham from EFA explained her concerns at the hearing:

It appears to us that part of the reason those fault elements and so forth are being used in that way is that the Commonwealth does not have the constitutional power to prohibit the conduct of inciting or counselling suicide. So once again it is prohibiting the conduct of using a carriage service, and we think this is part of the reason that the way in which the fault elements apply is so objectionable. The actual intent to commit to counsel or incite is not the actual criminal offence. A lower fault element of recklessness applies to intent to counsel or incite, because the actual

legislation is not making it illegal to do that; it is making it illegal to use a carriage service when there is a circ*mstance that something else may happen. 67

3.58 Since the offences in the Bill are framed in this way, and because of the application of the fault elements in the Criminal Code, EF A argued that a person may be found guilty of the offences when they did not intend to engage in conduct to incite or counsel a person to commit suicide.

68

65 Submission 8, p. 3.

66 Submission 32, p. 9.

67 Committee Hansard, 14 April2005, p. 25 .

68 Submission 28, p. 9.

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3.59 The Department rejected this analysis of the offences in the Bill. It argued that the concerns of the Model Criminal Code Committee69 are satisfied by the current drafting of the Bill. In particular, the Department reiterated that the fault element of recklessness applies to the requirement that the material must directly or indirectly counsel or incite suicide, or directly or indirectly promote or provide instruction on a particular method of committing suicide. However, even if a person is reckless as to these matters, it does not automatically follow that they have committed an offence under the Bill. 70

3.60 This is because:

For an offence to be committed the person must also have intended that the relevant material be used, by the person who engages in the offending conduct or another person, to counsel or incite suicide, or to promote or provide instruction on a method of committing suicide. Alternatively, where the material promotes or provides instruction on a method of committing suicide, a person could also be guilty of an offence if they intended that another person use the material to actually commit suicide.

Without that intention, no offence would be committed. 71

Counsels or incites

3.61 In relation to use of the word 'incites' (particularly in combination with the word 'indirectly'), Ms Graham of EF A stated that:

... we note that the model criminal code committee has previously rejected use of that word in criminal offences because some courts have interpreted 'incites' as only requiring causing. Given research fmdings of a link between media coverage of suicides and additional suicides, the proposed offences have the potential to criminalise journalists and ordinary individuals reporting on and discussing suicide. We also think that at least some internet material such as suicide related research, prevention and support material will be caught by the offences. 72

3.62 BFA also noted that the term 'counsels' is not defined in the Bill and that the phrase 'counsels suicide' is 'dangerously broad'. 73 There appeared to be a widely held

69 The Model Criminal Code Committee, in considering the offence of inciting the commission of an offence, rejected the use of the word 'incites' because 'some courts have interpreted incites as only requiring causing rather than advocating the offence'. That committee decided that 'the word 'urges' would avoid this ambiguity while capturing the essence of the offence'. The committee was also concerned that the fault element of 'recklessness in incitement was too great a threat to free speech' and, as a result, the word 'urges' was used and intention, not recklessness , applies: see further EFA, Submission 28, pp 8-9.

70 Submission 32, p. 9.

71 Submission 32, p. 9.

72 Committee Hansard, 14 April 2005, p. 21.

73 Submission 28, p. 12.

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concern that the term 'counsel' was intended to capture doctor-patient communications and other forms of counselling, such as those provided by Lifeline. EF A expressed the view that:

(i)t would include information that advises someone not to commit suicide, as well as information that advises someone to do so. We are highly concerned that the use of the word "counsels" would enable prosecution (or at least harassment) of people who counsel other people who are considering committing suicide but intend to discourage, not encourage, those other people from taking that course of action. 74

3.63 At the hearing, departmental representatives explained that the term is a legal one and would be given a narrow legal meaning by the courts. That is:

.. .it is a legally used concept which appears widely throughout Commonwealth law or Australian law. In the Commonwealth context, if you go to a person who aids, abets, counsels or procures the commission of an offence, you have to read the word 'counsels' in the context of aiding, abetting and procuring. It is not counselling in the medical sense of providing assistance and information; it is actually encouraging the person with an intent to bring about a result. 75

3.64 In answers to questions on notice, the Department elaborated:

In the context of these offences, the term 'counsels' is intended to have a narrow meaning. It would cover the encouragement or urging of a person to commit suicide and the giving of advice or assistance directed at the actual commission of suicide. The Bill will not capture the counselling of a person who is considering committing suicide by friends and family or organisations such as Lifeline. 76

3.65 Similarly, the Department explained that the term 'indirectly or directly' is a commonly used drafting device in criminal offences and does not widen the intended operation of these offences due to the intention element of the offences. 77

3.66 The South Australian Voluntary Euthanasia Society suggested that the phrase 'counsels or incites suicide' should be changed to read 'promotes or incites suicide'. 78 At the hearing, the committee asked the Department to give some consideration to this suggestion. It later informed the committee that:

The term 'counsels or incites' suicide was introduced after public consultation on the exposure draft of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004, which

74 Submission 28, p. 12.

75 Committee Hansard, 14 Apri12005, pp 28-29.

76 Submission 32, p. 10.

77 Submission 32 , p. 10.

78 Submission 10, p. 1.

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originally contained these offences. Prior to this change, it was proposed that a person would be guilty of an offence if they used a carriage service to access, transmit or make available material that was suicide promotion material and the person intended that that material be used to promote, counsel or incite suicide. It was considered that a broad interpretation of these draft offences could have resulted in material that advocates, debates or promotes euthanasia-related law reform being caught. To ensure that the Bill did not inadvertently criminalise such debate, the current formulation of words were adopted. 79

3.67 The Department also noted that:

The term 'promotes' has a broader reach than the widely used 'counsels ' and may pick up a discussion of the merits of committing suicide that falls short of advising or recommending it and accordingly this change should not be made. 80

3.68 And:

The offences do not refer to counselling about suicide, such as the services provided by Lifeline. Rather, they cover the situation where someone intends to use material to counsel suicide. In this context, the term counsels is intended to have the narrow meaning of encouraging or urging the commission of a suicide or the giving of advice or assistance directed at the actual commission ofsuicide.81

3.69 The Department also made a suggestion as to how the Bill might be amended to make the provision clearer than it currently stands:

It may make this provision clearer if the word 'committing' was inserted in between the phrase 'counsels or incites suicide' in section 474.29A(l) (b) and (c). The phrase would then read 'counsels or incites committing suicide'. It would put beyond doubt that counselling about suicide would not be captured unless the person encouraged or gave advice on the actual commission of a suicide. 82

Inconsistency with Customs Regulations

3.70 As mentioned above, a stated aim of the Bill is to prevent the Internet being used to circumvent the Customs Regulations (which prohibit the physical importation of suicide related material).

3.71 EFA submitted that the offences proposed in the Bill cover a vastly broader range of material than that prohibited by amendments to the Customs Regulations,

79 Submission 32, p. 3.

80 Submission 32, p. 4.

81 Submission 32, p. 4.

82 Submission 32, p. 4.

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which these offences are intended to complement. That is, the Bill would prohibit accessing and making available material by means of the Internet and other carriage services that remain lawful to import, export, access and distribute by other methods. 83

3.72 Further, EFA argued that:

... the Bill should not prohibit information that is not illegal to import and export, nor information that is not illegal to access or distribute within Australia by means other than a telecommunications carriage service. 84

3.73 The Department agreed that the Bill does cover a broader range of material than that prohibited by the amendments to the Customs Regulations. 85 Specifically:

The Bill deals with information on the Internet that instructs on the construction and use of a suicide device as well as step by step guides on how to commit suicide using available medicines, poisons and other non­ devices. Both types of material result in the same sort of harm. The Bill is intended to capture material and conduct in chat rooms and bulletin boards which actively encourage and provides information on specific methods of suicide.

These offences reflect the increased dependence of the community on telecommunications technology and the harm that can be done by its misuse.86

The committee's view

3.74 The committee recognises that the topic of suicide (including euthanasia) raises extremely complex and sensitive issues which require a cautious and well-informed policy approach. The committee is also conscious that the issue of suicide and how best to respond to it remains a difficult one for the Australian community. This is reflected in the sharp divide between those submissions and witnesses who supported the Bill and its purpose, and those who strongly objected to it.

3.75 The committee is also mindful of the balance of the evidence presented to it in the course of the inquiry. The committee notes stated concern within sections of the community that the Bill represents a misguided and unrealistic approach to a complicated policy matter that would not be effective in preventing suicide. In the committee's view, these arguments carry some weight. However, on balance, the committee does not consider that they are such as to prevent passage of the Bill. The committee notes again that assisting or encouraging another person to commit suicide is an offence in all states and territories. Moreover, to assist or encourage another

83 Submission 28, p. 6.

84 Submission 28, p. 6.

85 Submission 32, p. 6.

86 Submission 32, p. 7.

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person to attempt to commit suicide remains an offence in most Australian jurisdictions.

3.76 The committee's view is that the issues raised by the Bill are best addressed as part of a broader, multifaceted policy or strategy by Australian governments that is required to address the problem of suicide and related issues in Australia. Yet the committee also acknowledges that, without a broader range of research, initiatives and proactive measures to address suicide and related issues, it is clear that the Bill is unlikely to be effective in meeting its aims. The Bill, for example, will only apply to Australian hosted websites. The committee notes that the Senate Select Committee on Mental Health has recently been established and that its broad terms of reference would encompass consideration of the issues surrounding suicide in Australia and the national, state and territory policies or strategies required to address those issues.

3.77 The committee acknowledges concerns that the measures in the Bill will extend to personal and private communications between individuals including -potentially - discussions in the context of doctor-patient relationships and counselling services offered by organisations such as Lifeline. The committee is also concerned by these aspects of the Bill. However, the committee also notes that adequate safeguards and iimits are in place, such as the requirement to satisfy a court beyond any reasonable doubt that a defendant had the requisite intent. Precedents for such offences do exist. 87 The committee also notes and supports the Department's suggested addition of the word 'committing' to the phrase 'counsels or . incites suicide' in paragraphs 474.29A(l)(b) and (c) of the Bill, so that the phrase reads 'counsels or incites committing suicide', to help create greater certainty in relation to the kind of behaviour captured by the Bill's offences.

3.78 The committee acknowledges that concerns exist with respect to safeguards provided by proposed subsections 474.29A(3) and (4). As explained above, these provide that a person does not commit an offence merely because they use a carriage service to engage in public discussion or debate about euthanasia or suicide, or advocate reform of the law in relation to euthanasia or suicide. The committee's view is that the operation of these statutory safeguards should be subject to review. To this end, a report on the first 12 month's operation of these provisions should be prepared and presented to Parliament for its consideration.

87 Existing federal legislation already intrudes into the area of private electronic co=unications between individuals. Section 474.14 of the Criminal Code, for example, prohibits the use of a teleco=unications network (including a carriage service) with intention to co=it a serious offence. A 'serious' offence includes any offence against a law of the Co=onwealth, a state or a territory that is punishable by imprisonment for a period of 5 or more years or for life. This includes state and territory criminal offences in relation to suicide. The type of conduct captured by the offence in section 474.14 would include using a telephone to facilitate commission of state and territory offences concerning suicide.

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Recommendation 1

3.1 The committee recommends that proposed paragraphs 474.29A(1)(b) and (c) be amended so that the phrase 'counsels or incites suicide' reads 'counsels or incites another person to commit or attempt to commit suicide'.

Recommendation 2

3.1 The committee recommends that the Bill be amended to insert a requirement that, as soon as practicable after the end of 12 months from the date of the Bill's commencement, the Attorney-General must cause to be laid before each House of Parliament a comprehensive report on the operation of proposed subsections 474.29A(3) and (4).

Recommendation 3

3.2 Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

Recommendation 4

3.3 The committee supports and calls for the implementation of additional broader research, strategies, resourcing and policy initiatives by the Federal Government and state/territory governments in order to address jointly and consistently issues relating to suicide in Australia.

Senator Marise Payne Chair

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DISSENTING REPORT SENATOR BRIAN GREIG AUSRALIAN DEMOCRATS

As the Australian Democrats' spokesperson for IT, I cannot support this Bill.

It reinforces and promotes mythology about the internet and cannot possibly achieve the outcome that it pretends to provide for.

This Bill is simply another foolish attempt to censor the internet, and will fail for exactly the same reasons that previous well intended but clumsy attempts at banning internet p*rnography and online gambling have been demonstrably unsuccessful.

It may be the case that if passed, the Bill will restrict the activities of legitimate domestic Voluntary Euthanasia (VE) advocacy groups, but with the click of a mouse, any PC user can access literally hundreds of thousand of pages of information on VE from overseas websites.

This Bill has no international reach.

Simply by typing the words, "How to Kill Yourself' into the Google search engine, I was able to access more than 7, 230 000 hits in 0.10 seconds. This includes the site, "How to Kill Yourself Using the Inhalation of Carbon Monoxide Gas," and which comes complete with pictures.

This Bill will not and cannot ban this site.

However, the Bill creates the extraordinary situation, whereby it may be deemed that simply providing VE information domestically constitutes unlawful "counselling" or "inciting" when provided via the internet (including e-mail), or over the phone, yet this is not unlawful if the same information is provided by regular post.

It means for example, that the VE Society of NSW, may find itself in breach of the law simply by advocating for the introduction of VE in State Parliament and discussing this online with members and supporters.

I suggest this is the real agenda behind those conservative and religious organisations which most push for this Bill. I predict it will likely result in civil disobedience, with VE groups around Australia daring the Commonwealth to prosecute them in an environment where the populace overwhelmingly supports VE.

The Bill also creates the bizarre situation, for example, that providing quotes and chapters of the book "Final Exit" by author Derek Humphry, via e-mail, may be unlawful, yet buying the book from a newsagent remains lawful.

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Then there is the question as to whether purchasing this book from online company Amazon.com constitutes an offence under the Act. I suggest it may well do, even though it remains freely available in bookshops and libraries.

This is ridiculous and brings public policy into disrepute. The Bill lacks rationale and consistency and demonises the internet. It also completely fails to address the causes of suicide or offers any suggestions to help mitigate against this tragedy.

Suicide is a difficult social issue, and more common with elderly people than with the young, as is the perception.

I have long had an interest in youth suicide prevention, particularly from the demographic of gay and lesbian youth. A shocking statistic is that up to one third of all 'same-sex attracted' youth, those who are lesbian or gay, 'questioning' their sexuality or perceived to be hom*osexual, attempt or succeed at killing themselves. One third.

Australian and international research has repeatedly shown that harassment, discrimination, intolerance and prejudice aimed at young people who are hom*osexual, or presumed to be so, is a key reason for youth suicide.

The Commonwealth and the States have, to varying degrees, recognised this phenomenon and taken some steps to address it. Counselling, support and self esteem · programs, such as the "Working It Out" program in Tasmania are examples of this.

However, I note the harsh irony that many of the conservative religious organisations and individuals which made submissions in support of this Bill, are also some of the most vehement opponents of civil and human rights for gay and lesbian people, and host, refer to, or advocate websites that vilify hom*osexual people. This includes anti­ gay websites which state or infer that gay and lesbian people are mentally ill, morally depraved, diseased and child abusers - amongst other things.

This anti-gay hatred and promotion is part of the problem that leads many young people to kill themselves. It contributes to an environment of fear and isolation many young hom*osexual people can face, and it can result in hom*ophobic harassment and violence towards vulnerable youth. There is a link between the fear and loathing promoted by anti-gay groups, and the death of many young people. However, the Commonwealth remains silent on this nexus, despite its professed desire to limit

suicides in Australia.

Conclusion

While I can support the committee's recommendations (1) & (2), as these will improve the operation of the Bill a little, I believe the Bill itself should be scrapped.

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I can also support committee recommendation (4), but would argue that there is a particular urgency to address sexuality related suicide amongst young people, and which requires mandatory anti-hom*ophobia teaching and training in schools, and proper resources for Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI), youth to access support, education and counselling.

Brian Greig Australian Democrats

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144

SENATE LEGAL AND CONSTITUTIONAL COMMITTEE

Committee inquiry into the provisions of the Criminal Code Amendment (Suicide Related Material Offences) Bill2005

QUALIFYING COMMENTS

SENATOR BRIAN HARRADINE

Suicide is violence - lethal violence, constituting serious public and mental-health problems .worldwide. 1

The Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 is legislation designed to protect the public from individuals, organisations or groups that promote suicide using a carriage service such as the Internet.

The legislation prohibits using the Internet, email, telephones, fax machines, radio or television "for the purposes of counselling or inciting suicide, or promoting or providing instruction on a particular method of suicide. Possession or supply etc of material that is intended to be used for such offences is also itself an offence. " 2

Suicide is a serious problem in Australia. More than 2200 people commit suicide each year. 3 That's more than the annual road toll of over 1500 deaths per year that we see regularly reported on the television news. 4 Images of broken and crushed cars are more easily seen and understood than the private shattered lives and anguish of people who resort to suicide.

The World Health Organisation (WHO) states that suicide is " ... a huge but largely preventable public health problem, causing almost half of all violent deaths and resulting in almost one million fatalities every year .. . ".5

The WHO reminds us that "deaths from suicide are only a part of this very serious problem. In addition to those who die, many more people survive attempts to take

1

Leenaars, A (2003), Suicide and human rights: a suicidologist's perspective. Health and Human Rights, Vol6(2), pp 128-148. 2

Parliamentary Library Bills Digest, Criminal Code Amendment (Suicide Related Material Offences) Bill 2005. 15 March 2005. Page 2. 3

Australian Bureau of Statistics (2004), Suicides: recent trends, Australia. 15 December. Catalogue 3309.0.55 .001. 4

Australian Transport Safety Bureau (2005), Road Deaths Australia: Monthly Bulletin January 2005. Australian Transport Safety Bureau, Canberra. 5 "Suicide huge but preventable public health problem, says WHO". Media release for World Suicide Prevention Day- 10 September. World Health Organisation. Issued 8 September 2004 (http://www. who.int/mediacentre/news/releases/2004/pr61 /en!)

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their own lives or harm themselves, often seriously enough to require medical attention. Furthermore, every person who kills himself or herself leaves behind many others- family and friends -whose lives are profoundly affected emotionally, socially and economically. The economic costs associated with self-inflicted death or injuries are estimated to be in the billions of US dollars a year."6

A number of organisations have provided submissions to the Committee opposing the Bill because they provide or may want to provide information which assists a person to commit suicide or because they want that information to continue to be available. 7

One submission stated that it was agreed at its recent annual general meeting " ... there was no doubt that if the Bill becomes law, it will stifle, hamper and inhibit the work of VES, its various branches, and the work ofVE societies and their branches all over in Australia. "8

It appears therefore that a number of Australian euthanasia groups may already be involved in using a carriage service to "access, transmit or otherwise make available suicide related material, and possession, production, supplying or obtaining suicide related material for use through a carriage service."9

The legislation therefore clearly addresses a problem that exists in Australia.

The Internet and suicide

A number of published studies have indicated a link between information provided on the Internet and suicide. The very serious problem of suicidal people gaining information on suicide from the Internet has been documented by international researchers.

Rajagopal found that "an increasing number ofwebsites graphically describe suicide methods, including details of doses of medication that would be fatal in overdose. Such websites can perhaps trigger suicidal behaviour in predisposed individuals, particularly adolescents. " 10

6

World Health Organisation (2002), World report on violence and health. WHO Geneva. Page 185. 7

West Australian Voluntary Euthanasia Society, submission 4; Voluntary Euthanasia Society of New South Wales, submission 5 and 5A; Voluntary Euthanasia Society of Tasmania Inc, submission 6 and 6A; South Australian Voluntary Euthanasia Society, submission 10; Voluntary Euthanasia Society of Queensland, submission 15; Exit International, submission 16 and 16A. 8

Voluntary Euthanasia Society ofNSW, submission 5A. 9

Explanatory Memorandum, Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, page 1. 10 Rajagopal, S (2004), Suicide pacts and the Internet. British Medical Journal, Vol 329, pp 1298-

1299.

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Professor Keith Hawton from Oxford University's Centre for Suicide Research said "these sites are dangerous ... One of their founding theories is that they should be placed under no supervision whatsoever and feature no input from experts at all, and what you are left with is suicidal people counselling suicidal people, which is about as dangerous as it can get."

Professor Hawton comments that "a recurring feature of these sites seems to be the presence of voyeuristic people who get their kicks from encouraging others to commit suicide. There is definitely a seductive element." 11

Mehlum explains the particular dangers of the Internet to people considering suicide:

"First, there are many new web sites ... which present suicide as a solution rather than a problem."

"But there exist really very few legal, technical, or financial obstacles to those who wish to provide the millions of Internet users with detailed information on how to commit suicide."

"Second, and even more problematic from a suicidological perspective, is the new and increasingly interactive internet resources such as discussion groups."

"The establishment of the internet as a world-wide forum available to an increasing number of people has dramatically increased the possibility for otherwise widely scattered suicidal youngsters to rapidly and directly interact."12

Becker and Schmidt provide information on how suicide chat rooms function:

"Other suicide chat rooms, however, place no restrictions on participants, their mean position being that suicide is a deliberate decision. They postulate an antipsychiatric attitude and give clear instructions about methods, locations, and how to write suicide notes. Some also deal in suicide utilities.

"W ebmasters, laymen at therapeutic counselling, are opinion leaders within a chat room. They are responsible for group consensus, often pro-suicide. Other opinions are not tolerated. Internet use diminishes other modes of communications and heightens social withdrawal, causing a rise in

psychopathological characteristics.

"Ambivalence, an often-precarious balance between a chosen life and a chosen death, which is considered common to suicidal attitude, may tip in the direction of death in response to suicide chat rooms. Suicidal adolescent visitors risk losing their doubts and fears about committing suicide. Risk factors include peer

11

Hill, A (2003), Sony you're still here. The Observer, 27 April. 12 Meh1um, L (2000), The Internet, suicide, and suicide prevention. Crisis: The Journal of Crisis Intervention and Suicide Prevention, Vol. 21 ( 4 ), pp 186-188.

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pressure to commit suicide and appointments for joint suicides. Furthermore, some chat rooms celebrate chatters who committed suicide."13

One particular case is cited by Baume, Cantor and Rolfe, demonstrating the pressures of expectation that some suicidal people feel as a result of using chat rooms:

"The plea of Nick W (''I'm gonna do it any day now really I promise") suggests that he may have felt compelled by his internet participation to follow through with suicide. If it were not for his public commitments he might have been able to adopt a more constructive approach to problem-solving without losing face." 14

A study of the potential of Internet sites to trigger suicidal behaviour concludes that:

"A general prohibition of suicide sites is neither practicable nor reasonable, but the owners of suicide sites should be aware oftheir responsibility for adolescents. They should know and follow the fundamental rules of suicide prophylaxis as they should be applied to other media (no information on suicide methods, their efficiency or availability; no acceptance of demands or meetings for joint suicide, no publication of suicide). " 15

Becker and Schmidt argued further that the " .. . legal options to prevent cybersuicides should be discussed from a national and an international perspective because of the criminal abuse of the Internet communities." 16

This advice is consistent with the Government's legislation. The legislation is also consistent with the conclusion of other research that one of the most effective ways of reducing the suicide rate is to limit people's access to the means of suicide. 17

This

would reasonably be expected to include measures such as stopping distribution on a carriage service of the details of or advice on how to commit suicide.

Other carriage services and suicide

The Bill also deals with carriage services other than the Internet, such as telephones, faxes, radio, television and email. There is evidence that each of these methods of communication can be used to promote, counsel or incite suicide.

13

Becker, K and Schmidt, M (2004), L'lternet chat rooms and suicide. JAm Acad Child Ado/esc Psychiatry, Vol43(3), pp 246-247. 14 Baume, P, Cantor, C and Rolfe, A (1997), Cybersuicide: the role of interactive suicide notes on the

Internet. Crisis: The Journal of Crisis Intervention and Suicide Prevention, Vol 18(2), pp 73-79 . 15 Becker, K eta! (2004), Parasuicide online: Can suicide websites trigger suicidal behaviour in

predisposed adolescents? Nord J Psychiatry, Vol58(2), pp 111-114. 16 Becker, K and Schmidt, M (2004 ), Internet chat rooms and suicide. JAm A cad Child Ado/esc Psychiatry, Vol43(3), pp 246-247. 17

Gunnell, D and Frankel, S (1994), Prevention of suicide: aspirations and evidence. British Medical Journal, Vol308, pp 1227-1233. World Health Organisation (2002), World report on violence and health. WHO, Geneva. Page 202.

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Exit International's Philip Nitschke gave evidence on the importance of email and methods of communication other than the Internet for providing suicide information:

"We are concerned about the legislation's ability to impact on private communications. All of the material that we are talking about - which perhaps would be considered to be in the area of discussing methods and the like - takes place on a one-to-one basis or through email and the like. But all of that is covered by this law." 18

Dr Nitschke was very specific about the subject of those communications, saying "we invariably talk about suicide; this is the reason they contact us."19

Evidence of the importance of telephones came from the professed intention of one overseas suicide group to set up a telephone hotline:

" . .. one newsgroup which calls itself'The Church ofEuthanasia' ... suggests suicide as a positive act for all, and have announced their intention to set up a 'suicide assistance telephone hotline' to pursue this further."20

The caution that must be exercised by radio and television outlets in how they report suicide is acknowledged by Electronic Frontiers Australia, which states that research shows there is " ... a substantial risk that general discussion and media reports about suicide causes suicide."21 Yet the EFA appears not to have the same concern about the effect of counselling or inciting suicide on the Internet or other carriage services.

Suicide and the law

Legislators have a responsibility to protect the community, for the common good of all, even if this involves some interference in the interests of some members of the public. It is important to ensure that those who are vulnerable to influence do not have unrestricted access to advice or materials that would encourage or assist them to end their life rather than seeking help. The community has a responsibility to protect vulnerable people and to provide the best medical and social care.

The law also has an educative dimension. Laws such as the bill under consideration educate society that there is value in the life of every human being, and that special care should be provided to those who are vulnerable for any number of reasons.

18

Philip Nitschke, Exit International, Committee Hansard, 14 Apri12005, page 13. 19 Philip Nitschke, Exit International, Committee Hansard, 14 April2005, page 10. 20

Thompson, S (1999), The Internet and its potential influence on suicide. Psychiatric Bulletin, Vol 23, pp 449-451. 2 1 Electronic Frontiers Australia, submission 28, pages 11-12.

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A number of organisations and individuals have argued that given suicide is no longer a crime, providing information to assist suicide should not be restricted by the Bi11.22

But just because suicide is not a crime does not mean it is a public good that should be promoted or facilitated. Suicide was decriminalised because there was little value in prosecuting someone who was dead or who had attempted suicide. Suicidal people need help, not prosecution. But there is great value in protecting the general public from people who assist suicide.

It is for this reason that aiding or abetting a suicide is illegal in every state and territory in Australia.23 To restrict access to harmful material, it is important to strengthen the law to ensure that using a carriage service to counsel or incite suicide or the possession or supply of suicide material intended to assist a suicide is also illegal.

Vulnerable people

There was some debate in submissions and testimony before the committee as to the defmition of the vulnerable people that this bill is designed to protect.

Electronic Frontiers Australia said " .. . if the vulnerable individuals that the bill is referring to are terminally ill people and older people that are wanting to know information, we do not consider that they should necessarily be considered to be vulnerable and so be prevented from being able to obtain information."

24

Voluntary Euthanasia Society ofNSW president Kep Enderby demonstrated that there are sometimes very different understandings of the term "vulnerable" and "rational" suicide between members of groups that counsel, incite or promote suicide and the general public. Mr Enderby described a woman:

" ... who has twice tried to kill herself, not irrationally but in the most rational way. She has had a good life, too. She is 51 now. She was a highly qualified nurse. She lived in Perth; she married a Perth chap. She had three children, all of whom were grown up. She was very matemalistic. She had an NF child, a little boy called James, whois now eight. She had hardly had him, by arrangement with the fertility clinic, when she came down with a very nasty form of malignant brain tumour, which led to her having surgery. This had to be followed by radiation therapy, and she changed. Her whole personality changed.

"She is not vulnerable in any sense. She has lost her right to drive a motor car because she has epileptic turns. She is on heavy doses of morphine for the headaches and so forth. That led to her elder daughter bringing an action in the

22

For example: Ms Gillian Walker, submission 3; West Australian Voluntary Euthanasia Society, submission 4; Voluntary Euthanasia Society ofNSW, submission SA, Voluntary Euthanasia Society of Tasmania, submission 6, page 2, etc. 23

Ms Julianne Smith, submission 25 24 Irene Graham, Electronic Frontiers Australia, Committee Hansard, 14 April2005, page 21.

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Family Court of Western Australia to take the boy away from her, and she fought that in a litigation .... She lost the child. She has access to him and can ring him up. She moved over to the eastern states .... She rings the little boy up every Saturday and she has him three weeks a year over here ...

"With all these things going on, she took an overdose of morphine one night. It was not enough, and she survived. She later took another dose, but she was saved because her neighbour came in and called an ambulance. She now lives up in Wyong, but she has a most miserable life. She lives on a disability pension ... . she is obviously still a very unhappy human being. She might die any time, but she might live for another 20 years. She might also do what she has unsuccessfully tried to do twice, and I would not blame her. " 25

Most people would consider such a woman vulnerable and entitled to community protection and assistance. It is a concern that some organisations may provide suicide information to such a vulnerable woman, who may well be suffering from depression.

Geoffrey Gray from the Attorney General's Department put the question in some context:

"Its all very well to talk about adults making informed choices. I agree with that entirely, but are people who are vulnerable and considering suicide in a position to make an informed choice? That is the real problem. If this information is so readily available, it can be used by people before they have had the opportunity to make an informed choice."26

This caution was reinforced by research which demonstrated how people with suicidal thoughts, but ambivalent about committing suicide, could be encouraged on Internet sites to take their life. The research " .. . noted the ambivalence of the notes posted [on the Internet] by some subjects, and how their resolve strengthened following the encouragement of others, eventuating in successful suicides in some cases. They also felt there was evidence that vulnerable individuals were compelled so strongly by others that to back out or seek help would involve losing face. "27

There is, for instance, a significant pool of young people who consider suicide or self harm. "Some 7%-14% of adolescents will self harm at some time in their life, and 20%-45% of older adolescents report having had suicidal thoughts at some time." 28

Each of these young people is vulnerable and could be pushed over the edge to their death by individuals or groups promoting suicide.

25

Kep Enderby, Voluntary Euthanasia Society ofNSW, Committee Hansard, 14 April2005, page 20. 26 Geoffrey Gray, Attorney General's Department, Committee Hansard, 14 April2005, page 30. 27

Thompson, S (1999), The Internet and its potential influence on suicide. Psychiatric Bulletin, Vol 23, pp 449-451. 28 Hawton, K and James, A (2005) Suicide and deliberate self harm in young people. British

Medical Journal, Vol. 330, pp 891-894.

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Autonomy and rational suicide

A number of submissions argued that the proposed legislation should not restrict access to information, as that would impact on a person's autonomy. 29 But while the autonomy argument implies that anyone should be able to die how, when and where they want, this is not supported by a number of other submissions which argue suicide information should only be available for "rational" suicide or suicide by a "rational adult"30 or "competent adult".31

The Voluntary Euthanasia Society of Tasmania for example argues "it should not be illegal to supply information to rational responsible adults regarding a legal act regardless of how it will be used."32

The Voluntary Euthanasia Society ofNSW's Kep Enderby said" ... it is my view and the view of the society that I represent that a rational, sane adult- more often than not the elderly and those who are ill - have the right to be able to bring their life to an end if they want to, if they rationally decide that that is what they want."33

Philip Nitschke complains" ... the Bill's main aim is to prevent rational adult Australians from using a carriage service to access any type of information about their end of life options."34 But his position is not consistent. Dr Nitschke is on the record saying that suicide pill information should be provided to all who want it - not just rational adults: "someone needs to provide this knowledge, training, or recourse necessary to anyone who wants it, including the depressed, the elderly bereaved, [and] the troubled teen".35

Deciding who is and who is not "rational" then becomes controlled by those holding the suicide information. In this situation people seeking information on suicide actually have less autonomy, because they are only given the information if their life is judged by others to be no longer worth living. If any community were to accept euthanasia groups controlling this information, it would also be endorsing their view of vulnerable people as expendable.

Already vulnerable people who are considering ending their lives see in suicide advice an endorsem*nt of their disordered thinking. They see a justification for committing the act of suicide rather than seeking the help they obviously need.

29 For example: Ms Gillian Walker, submission 3; WA Voluntary Euthanasia Society, submission 4 30 Marshall Perron, submission 1; YES Tasmania, submission 6; YES Victoria, submission 11 , Exit

International, submission 16A; Electronic Frontiers Australia, submission 28 31 South Australian Voluntary Euthanasia Society, submission 10 32

Voluntary Euthanasia Society of Tasmania, submission 6. 33 Kep Enderby, Voluntary Euthanasia Society ofNSW, Committee Hansard, 14 Apri12005, page 18. 34

Exit International, submission 16A 35 Lopez, K J (200 1 ), Euthanasia sets sail. National Review Online, 5 June. http://www.nationalreview.com/interrogatory/interrogatoryprint06050 l.html

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If it becomes routine to give certain people access to information on suicide, it then becomes a pressure on those types of people to see suicide as a solution so they won' t be a burden, or so that their physical, psychological or spiritual pain can end. One writer notes that "fear of dependency and reluctance to burden family members may be important mediators of decisions about suicide."36 So those people seeking

information from suicide groups actually have no effective autonomy. Control over their suicide rests with the approval of others.

The autonomy argument is further undermined by one submission, which argues that:

" ... it is not right to criminalise a friend or relative of a terminally-ill person who, in anticipation that their dying loved one will seek their help in alleviating their suffering, obtains information from the Internet about methods of suicide. "

37

The real question is why would such a person obtain suicide information if there has not been an explicit request? What does this say about the family member's attitude to their terminally ill relative or of their respect for autonomy? There would be a high risk of that ill person feeling as if they were a burden and that they should consider suicide if they are offered information on how to take their life.

Depression

It is worth mentioning that none ofthe submissions opposing this legislation mentioned depression. Yet depression is one of the major factors driving the suicide rate. And depression is a treatable condition.

Whether a patient is suffering from depression or not is clearly an important matter that deserves expert medical assessment. The World Health Organisation has determined that "depression plays a maj or role in suicide and is thought to be involved in approximately 65-90% of all suicides with psychiatric pathologies."

38

One study found that "patients with depressive symptoms were more likely to change their minds about desiring euthanasia or PAS [physician-assisted suicide]". 39 In

another study depression and hopelessness were the strongest factors predicting a patient's desire for an early death. 40

36

Johnson, T (2003), Book review: Suicide and euthanasia in older adults : a transcultural journey. Psychiatric Services, Vol 54, pp 261. 37 NSW Council for Civil Liberties, submission 27 38

World Health Organisation (2002), World Report on Violence and Health. WHO, Geneva. Page 192. 39 Emanuel, E et al (2000), Attitudes and desires related to euthanasia and physician-assisted suicide

among terminally ill patients and their caregivers. Journal of the American Medical Association, Vol284(19), pp2460-2468. 40 Breitbart, W et al (2000), Depression, hopelessness, and desire for hastened death in terminally ill

patients with cancer. Journal of the American Medical Association, Vol284(22), pp 2907-2911.

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A further study reported a very high association between suicide in adolescents and depression. "Psychological postmortem studies of suicides show that a psychiatric disorder (usually depression, rarely psychosis) is present at the time of death in most adolescents who die by suicide.'.41

Given the high association between depression - a treatable condition - and being suicidal, it is important that depression is always considered when suicide is discussed. Depression is often missed or not treated properly.42

Despite the importance of depression in contributing to suicidal behaviour, it was reported earlier this year that Exit International's director Dr Philip Nitschke refused to seek expert opinion on whether those who approach him are suffering from depression. Dr Nitschke said that:

"The idea that psychiatrists should be the ultimate arbiters does not sit well with me or many of the people that come to see me. I would say common sense is a good enough indicator. It's not that hard to work out whether are dealing with a person who is able to make rational decisions or not. ,,4

It is important to note that depression is more difficult to detect than many other health conditions because those suffering the condition are often unaware of their illness:

"Unfortunately, because a common symptom of depression is a loss of insight and a feeling of hopelessness, depressed people usually have little understanding of the severity of their illness. They are often the last to recognise their problem and seek help. It is therefore critical that primary care physicians develop the skills to recognise depression in patients, particularly the terminally ill and elderly, whose depressive symptoms may be masked by coexisting medical conditions such as dementia and coronary artery disease.'M

Undiagnosed depression is clearly a major danger for suicidal people. Yet it appears to be ignored by providers of do-it-yourself suicide information.

The Australian experience

The danger of groups or individuals providing suicide information to vulnerable individuals is well illustrated by Australia's experience with euthanasia in the

41

Hawton, K and James, A (2005) Suicide and deliberate self harm in young people. British Medical Journal, Vol. 330, pp 891-894. 42 Hitchco*ck Noel, pet a! (2004), Depression and comorbid illness in elderly primary care patients:

impact on multiple domains of health status and well-being. Annals of Family Medicine, Vol 2(6), pp 555-562. 43 Pelly, M (2005), A better option: the wait for a way out. The Sydney Morning Herald, March 19. 44

New York State Taskforce on Life and the Law (1994), When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context. New York State Department of Health. Page 15.

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Northern Territory. In a review of the issue, the University of Adelaide's Professor Robert Goldney commented:

" ... even with ostensibly strict guidelines embodying most issues considered by proponents of euthanasia to be important, as a result of the clinical details provided there exist reservations about what occurred with two of the four persons who died under the Northern Territory legislation. This is hardly a reassuring record for examples of euthanasia which would inevitably be subjected to the most intense public scrutiny."45

Depression was a major factor in the Northern Territory's experiment with euthanasia, as it is a major factor in the problem of suicide. In a major review of the case notes of seven people who sought euthanasia in the Northern Territory, published in The Lancet, there was evidence of inadequate consideration of depression:

"To what extent was the psychiatrist trusted with important data and able to build an appropriate alliance that permitted a genuine understanding of a patient's plight? In case 1, there was important background detail about the death of one child and alienation from another, which was withheld during the psychiatric assessment. These experiences may have placed the patient in a lonely, grieving, demoralised position: an unrecognised depression may have led to suicide.

"Four of the seven cases had symptoms of depression, including reduced reactivity, lowered mood, hopelessness, and suicidal thoughts. Case 4 was receiving treatment for depression, but no consideration was given to the efficacy of dose, change of medication, or psychotherapeutic management. PN judged this patient as unlikely to respond to further treatment. Nonetheless, continued

h . . d d "46 psyc 1atnc care appeare warrante . . . .

The Australian experience with euthanasia shows that the significance of depression and psychiatric illness in euthanasia and by implication in suicidal people should not be underestimated.

Rationalising suicide

A number of submissions opposing the Bill attempted to rationalise the serious life and death nature of suicide away, arguing that somehow 2200 deaths per year are not a national tragedy:

"no one is able to claim that inciting suicide has reached an alarming proportion " 47

45

Goldney, R (2001), Euthanasia: The Australian Experience. In: Suicide and Euthanasia in Older Adults: A Transcultural Journey, De Leo D, ed. Seattle: Hogrefe and Huber, pp172-179. 46 Kissane, D, Street, A, Nitschke, P (1998), Seven deaths in Darwin: case studies under the Rights

of the Terminally lll Act, Northern Territory, Australia. The Lancet, Vol352, pp1097-1102. 47 W A Voluntary Euthanasia Society, submission 4

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" . .. the risk to the vulnerable temporarily depressed young people. Suicide in these cases is tragic. This in itself does not justify the censorship ... The plight of the greater number of people denied relief from suffering [through suicide] . II . '"'8 ... Is equa y tragtc.

" ... we do know that people have and are committing suicide in the most horrendous ways possible, and all because they were unable to source or were deprived of meaningful [suicide] information and help from a compassionate and sympathetic society.'"'9

The concern seems to be with ensuring the swift and efficient death of suicidal people rather than helping them to avoid suicide.

Groups arguing against this bill reject the notion that suicide is a bad thing that should be prevented. There is apparently no consideration given to the issue of depression. They instead want to provide people with information on how to suicide in a more effective way.

Preventing suicide

Not one of the submissions opposing this legislation offered comment on how to reduce the suicide rate. Opponents of the legislation merely lobbied to be able to provide information and advice on suicide without the proposed restrictions.

Preventing suicide is a very complex issue which requires further significant study and long term investment. 5° The Australian Government provides approximately $10 million per year for the National Suicide Prevention Strategy.51 This is good, but doesn't do justice to the size of the problem.

One report commented that ••the primary risk factors for completed suicides are major depression, substance abuse, severe personality disorders, male gender, older age, living alone, physical illness, and previous suicide attempts. For terminally ill patients with cancer and AIDS, several additional risk factors are also present. "

52

Older people are at particular risk from suicide attempts. One study noted that "late life suicide is characterised by less warning, higher lethality and greater prevalence of depression and physical illness. However, suicide risk often remains undetected. " 53

48

Voluntary Euthanasia Society of Tasmania, submission 6. 49 WA Voluntary Euthanasia Society, submission 4. 50

De Leo, D (2002), Why are we not getting any closer to preventing suicide? Th e British Journal of Psychiatry, Vol 181 , pp 372-374. 51 New National Advisory Council on Suicide Prevention. Media Release from the Hon Trish Worth

MP, Parliamentary Secretary for Health, 29 March 2004. 52 New York State Taskforce on Life and the Law (1994), page 12. 53 Rahim, S et al (2005), Elderly suicide: an analysis of coroner' s inquests into two hundred cases in

Cheshire 1989-2001. Med Sci Law, Vol45(1), pp 71 -80.

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The main thrust of prevention work for older people has been to detect and treat depression and other psychiatric illnesses. It has been found that" ... approximately 75% of all elderly suicide victims suffer from some sort of psychiatric disorder at the time of their death, with affective disorders representing the most common diagnosis. " 54

There are indications that among the elderly suicide rates fall when there are better levels of psycho-geriatric and community services. 55

One recent study found that a decline in elderly suicide rates was associated with increases in the number of general practitioners and in the numbers of medical staff in hospitals; increases in the number of social workers in the field and increases in the number of hospital outpatients receiving treatment for mental illness. 56

While there are a great number of approaches to preventing suicide that have to be examined further by the experts, none of them involve providing information on how to commit suicide. On the contrary, it is important to establish effective alternate, life affirming Internet sites. Mehlum acknowledged that " ... the new technologies will obviously create new risk scenarios. But new opportunities for prevention will also be created. We'd better use them for all they're worth."57

One study of suicide prevention techniques commented that "the greatest potential seems to arise from limiting the availability of methods [of suicide]". 58

Ways to improve the bill

There were a number of suggestions on how to improve the protections that the Bill offers to suicidal people.

Richard Egan suggested a way of improving the protection of Australians from overseas suicide sites:

"Where the use of the carriage service to induce a person to commit suicide or to attempt suicide actually results in someone either attempting or actually committing suicide we think the penalties should be similar to those in state legislation for the same offence, which is imprisonment for 10 years. We are

54

De Leo, D and Spathonis, K (2004), Culture and suicide in late life. Psychiatric Times, Vol XX 11 , Octoberpp 14-17. 55 Pritchard, C and Hansen, L (2005) Comparison of suicide in people aged 64-74 and 75+ by gender

in England and Wales and the major Western countries 1979-1999. Int J Geriatr Psychiatry, Vol20(1), pp 17-25 . 56 Lodhi, L and Shah, A (2005), Factors associated with the recent decline in suicide rates in the

elderly in England and Wales, 1985-1998. Med Sci Law, Vol45(1), pp 31-8. 57 Mehlum, L (2000), The Internet, suicide, and suicide prevention. Crisis: The Journal of Crisis Intervention and Suicide Prevention, Vol. 21(4), pp 186-188. 58

Gunnell, D and Frankel, S (1994), Prevention of suicide: aspirations and evidence. British Medical Journal, Vol308, pp 1227-1233.

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also concerned that the bill has a loophole in that internet sites hosted offshore are not easily caught, because, rightly, there is an exception for internet service providers who do not know that suicide related material is being accessed through their service. We believe that the bill certainly needs a provision to ensure that once the URLs of such sites are drawn to the attention of the internet service providers there is a penalty on them if they do not block access to those sites."

This is a sensible precaution which should be adopted. It would go some way to meeting the suggestion of Graham Preston from Right to Life Australia, who recommended an amendment to " ... require internet service providers to restrict access to web sites which provide promotion and instruction material referring to suicide." 59

The suggestion would also go some way towards the protection suggested by the Festival of Light which asked for a system similar to the Online Content Co­ Regulatory Scheme, set up to protect the Australian public from unwanted p*rnography where "for a website hosted on a web server in Australia [the Government] would issue a take-down order; for a foreign hosted website it would order Australian ISPs to block access."60

Egan also suggested a further sensible amendment to this or to other legislation to amend Australian classifications so that books counselling or inciting suicide would also be restricted, to protect vulnerable individuals.

"Our proposal is that either in this bill or at a later stage the Senate look at amending the classification act. It seems to me that publications such as Final Exit, which instruct in detail in methods of suicide, are just as harmful as the ·same material on the internet. That publication was at least temporarily banned

in at least one state in Australia when if first came out, but unfortunately since then it has been classified R and the book has been implicated in some successful suicides in Australia." 6 1

Conclusion

Compassion is not giving someone information on how to commit suicide when we should be looking to the reasons they want to take such desperate action. Compassion is addressing people's pain, depression, loneliness or fear.

There' s no dignity in being told that you're right to want to commit suicide because your life is awful. Dignity comes from knowing that whatever your health and your personal shortcomings, there are people there who will love and support you, no

59

Graham Preston, Right to Life Australia, Committee Hansard, 14 April2005, page 7. 6 ° Festival of Light Australia, submission 29, page 2. 61 Richard Egan, Coalition for the Defence of Human Life, Committee Hansard, 14 April2005, page

2.

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matter what. We should concentrate efforts on helping to make sure this kind of assistance is available to all.

The Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 is necessary because it targets those who prey on the despair, depression, sadness or loneliness of other people by counselling or inciting suicide, or by providing information on methods of suicide. But the legislation is not enough in itself. The Government must also address the social and personal factors which drive people to consider suicide in order to come up with a well-rounded solution to this very serious problem.

More resources are needed for proactive approaches to finding and helping suicidal people to overcome their personal difficulties and to live long and fulfilling lives. A greater investment of resources would be more than justified by the World Health Organisation's estimate of the high economic cost of suicide, let alone the personal cost. Suicide is an act of self-destructive violence which leaves in its wake further pain and suffering for those who are left behind.

Senator Brian Harradine Independent Senator for Tasmania

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APPENDIX!

SUBMISSIONS RECEIVED

Mr Marshall Perron

2 Right to Life Australia

3 Ms Gillian Walker

4 West Australian Voluntary Euthanasia Society

5 Voluntary Euthanasia Society ofNew South Wales

5A Voluntary Euthanasia Society ofNew South Wales

6 Voluntary Euthanasia Society of Tasmania

6A Voluntary Euthanasia Society ofTasmania

7 MrKR&Mrs LMRay

8 Mr Anthony L & Mrs Beryl M Saclier

9 Coalition for the Defence of Human Life

10 South Australian Voluntary Euthanasia Society

11 Voluntary Euthanasia Society of Victoria

12 Dr David M Gawler

13 Australian Christian Lobby

14 Ms Sandra Milne

15 Voluntary Euthanasia Society of Queensland

16 Exit International

16A Exit International

17 Dr Fiona Stewart

18 The Law Society ofNew South Wales

19 Ms Dorothy Trezise

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20 Australian Broadcasting Authority

21 Gilbert and Tobin Centre of Public Law

22 Mr Neil D. Cook

23 Atheist Foundation of Australian

24 Australian Civil Liberties Union

24A Australian Civil Liberties Union

25 Ms Julianne Smith

26 Salt Shakers, Christian Ethics, Research and Action

27 New South Wales Council for Civil Liberties

28 Electronic Frontiers Australia

29 Festival of Light Australia

30 Catholic Women's League Australia

31 Confidential

32 Attorney General's Department

Documents tabled at the public hearing

Documents tabled by Mr Richard Egan, Coalition for the Defence of Human Life

Documents tabled by Mr Graham Preston, Right to Life Australia

Killing Me Softly, Dr Philip Nitschke and Dr Fiona Stewart, Penguin Books, Victoria, 2005, tabled by Dr Philip Nitschke, Exit International

Documents tabled by the Attorney-General's Department

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APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE

Canberra, Thursday 14 April2005

Coalition for Defence of Human Life

Mr Richard Egan, Board Member, Treasurer and Spokesman

Right to Life Australia

Mr Graham Preston, Queensland Coordinator

Exit International

Dr Philip Nitschke, Director

Voluntary Euthanasia Society of New South Wales

Mr Kep Enderby QC, President

Electronic Frontiers Australia

Ms Irene Graham, Executive Director

Attorney-General's Department

Mr Geoff Gray, Acting Assistant Secretary, Criminal Law Branch, Criminal Justice Division

Ms Kimberley Williams, Senior Legal Officer, Criminal Law Branch, Criminal Justice Division

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The Senate

Legal and Constitutional Legislation Committee

Crimes Legislation Amendment

(Telecommunications Interception

and Other Measures) Bill 2005

June 2005

165

© Commonwealth of Australia 2005

ISBN 0 642 71536 X

Printed by the Senate Printing Unit, Parliament House, Canberra.

166

MEMBERS OF THE LEGISLATION COMMITTEE Members Senator Marise Payne, Chair, LP, NSW Senator the Hon. Nick Bolkus, Deputy Chair, ALP, SA Senator Brian Greig, AD, WA* Senator Linda Kirk, ALP, SA Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member Senator Ridgeway to replace Senator Greig for matters relating to the Indigenous Affairs portfolio

Participating Members Senator the Hon. Eric Abetz, LP, TAS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, WA Senator George Brandis, LP, QLD Senator Bob Brown, AG, TAS Senator Geoff Buckland, LP, QLD Senator George Campbell, ALP, NSW Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Hon R Colbeck, LP, T AS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, WA Senator Christopher Evans, ALP, WA Senator the Hon. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Harradine, IND, TAS

Secretariat

Secretary

Senator John Hogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Susan Knowles, LP, WA Senator Ross Lightfoot, LP, W A Senator Joseph Ludwig, ALP, QLD Senator Kate Lundy, ALP, ACT Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NP A, VIC Senator Jan McLucas, ALP, QLD Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator Aden Ridgeway, AD, NSW Senator the Hon. Nick Sherry, ALP, TAS Senator Ursula Stephens, ALP, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Watson, LP, TAS

Mr Owen Walsh Ms Julie Dennett Ms Sophie Power Mr Mark Stevenson Ms Judith Wuest

Principal Research Officer Principal Research Officer Estimates Officer Executive Assistant

Suite Sl.61 Parliament House

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au

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iv

168

TABLE OF CONTENTS

MEMBERSHIP OF COMMITTEE RECOMMENDATIONS ABBREVIATIONS

CHAPTER!

INTRODUCTION

Background

Conduct of the inquiry

iii

vii ix

1

1

Acknowledgement 2

Note on references 2

CHAPTER2 3

OVERVIEW OF THE BILL 3

Significant provisions of the Bill 3

CHAPTER3 11

KEY ISSUES 11

Definition of 'law enforcement officer' (Schedule 1) 11

Exemption for an 'emergency services facility' (Part 1 of Schedule 2) 12

Interception by radiocommunications inspectors (Part 2 of Schedule 2) 17

Ancillary offences (Part 3 of Schedule 2) 18

Civil forfeiture proceedings and named person warrants (Part 4 of Schedule 2) 20

Clarification of'employee of a carrier' (Part 5 of Schedule 2) 21

The committee's view 22

Additional Comments and Points of Dissent by Senator Brian Greig on behalf of the Australian Democrats 27

Appendix 1 - Submissions Received 29

Appendix 2- Proof Hansard, Canberra, 15 June 2005 31

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RECOMMENDATIONS Recommendation 1

The committee recommends that proposed paragraph 473.1(k) of the Bill be amended to identify more clearly which agencies may be included for the purposes of the definition of 'law enforcement officer' in the Criminal Code Act 1995.

Recommendation 2

The committee recommends that the Bill be amended to provide that any declaration of an 'emergency services facility' under proposed subsection 7(3AB) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Recommendation 3

Further to Recommendation 2, the committee recommends that the Bill be amended to authorise any declaration of an 'emergency services facility' under proposed subsection 7(3AB) not to include details of the specific location of an 'emergency services facility', but at the same time contain adequate information to allow appropriate scrutiny by Parliament (such as the name of the service and the region in which it is located, if possible).

Recommendation 4

The committee recommends that the Bill be amended to require emergency services telecommunications interceptions 'to occur lawfully in the course of a person's duties'.

Recommendation 5 The committee recommends that the Bill be amended to require that the Attorney-General Department's annual report prepared under Division 2 of Part IX of the Telecommunications (Interception) Act 1979 include a summary of telecommunications interception inspections conducted in the relevant year, together with a summary of any deficiencies identified and any remedial action taken (including with respect to emergency services telecommunications

interceptions).

Recommendation 6 Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

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172

ACA

AFP

ASIO

ASIS

the Bill

the Criminal Code

the Department

DPP

DSD

EM

the Law Council

ABBREVIATIONS Australian Communications Authority

Australian Federal Police

Australian Security Intelligence Organisation

Australian Secret Intelligence Service

Crimes Legislation

(Telecommunications Interception Measures) Bill2005

Criminal Code Act 199 5

Amendment and Other

Attorney-General's Department

Commonwealth Director of Public Prosecutions

Defense Signals Directorate

Explanatory Memorandum

Law Council of Australia

the Legislative Instruments Legislative Instruments Act 2003 Act

NECWG

NSWCCL

SAPOL

the Sherman Report

TI Act

TI Bill

WAPS

the 1999 Bill

National Emergency Communications Working Group

New South Wales Council for Civil Liberties

South Australia Police

Mr Tom Sherman AO, Report of the Review of Named Person Warrants and Other Matters, Canberra, 2003

Telecommunications (Interception) Act 1979

Telecommunications (Interception) Amendment Bill 2004

Western Australia Police Service

Telecommunications (Interception) Legislation Amendment Bill 1999

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CHAPTER!

INTRODUCTION

Background

1.1 On 11 May 2005, the Senate referred the Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill 2005 (the Bill) to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 14 June 2005. On 14 June 2005, the Senate agreed to extend the reporting date to 17 June 2005.

1.2 The Bill seeks to amend the Criminal Code Act 1995 (the Criminal Code) to extend the defences to certain offences under Part 10.6 of the Criminal Code to all agencies who may exercise powers under the Telecommunications (Interception) Act 1979 (the TI Act). The Bill also seeks to amend the TI Act to:

• allow the interception (without a warrant) of communications to and from certain declared emergency services facilities;

allow the interception (without a warrant) by authorised radiocommunications inspectors who are fulfilling their statutory obligations under the Radiocommunications Act 1992;

• allow telecommunications interception warrants to be obtained in connection with the investigation of the ancillary office of accessory after the fact for a 'class 1' offence under the TI Act;

implement the recommendations dealing with statistical information for named-person warrants, reports by the Commonwealth Ombudsman and civil forfeiture regimes contained in the Report of the Review of Named Person Warrants and Other Matters, completed by Mr Tom Sherman AO in 2003

(the Sherman Report); and

• clarify the meaning of the term 'an employee of a carrier'.

Conduct of the inquiry

1.3 The committee advertised the inquiry in The Australian newspaper on 18 and 25 May 2005, and invited submissions by 27 May 2005. Details of the inquiry, the Bill and associated documents were placed on the committee's website. The committee also wrote to 60 organisations and individuals, including police, fire and ambulance

services in each state and territory.

1.4 The committee received 10 submissions which are listed at Appendix 1. Submissions were placed on the committee's website for ease of access by the public. The committee held a public hearing in Canberra on 15 June 2005.

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1.5 Given the short timeframe between the public hearing and the reporting date, the committee has not had the opportunity to consider fully the issues raised at the public hearing. The committee's report therefore relies on the evidence provided in submissions. However, the committee also presents the proof Hansard transcript of the public hearing at Appendix 2 of the report to assist the Senate in its consideration of the Bill.

Acknowledgement

1.6 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1. 7 References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

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CHAPTER2

OVERVIEW OF THE BILL

2.1 This chapter briefly outlines the main provisions of the Bill.

Significant provisions of the Bill

2.1 The Bill seeks to amend the Criminal Code and the TI Act 'to ensure that they operate in a manner that enhances rather than hinders the functioning of [Australia's] law enforcement agencies'. 1 The amendments contained in the Bill will primarily affect the TI Act.

Schedule ]-Amendment of the Criminal Code Act 1995

2.2 The Crimes Legislation Amendment (I'elecommunications Offences and Other Measures) Act (No.2) 2004 repealed the telecommunications offences in the Crimes Act 1914 and replaced them with new and updated telecommunications offences in the Criminal Code. The Criminal Code provides a 'law enforcement officer' who acts in good faith in the course of his or her duties and whose conduct is reasonable in the

circ*mstances of performing those duties with a defence to these and other offences.2

2.3 Currently, the expression 'law enforcement officer' is defined with reference to the Australian Federal Police (AFP), state/territory and foreign police forces, the Australian Crime Commission, the Commonwealth Director of Public Prosecutions and similar offices established under state/territory law.

2.4 Item 1 of Schedule 1 expands the definition of 'law enforcement officer' to encompass officers of the New South Wales (NSW) Crime Commission, the Independent Commission Against Corruption, the Western Australia (W A) Corruption and Crime Commission, staff of the NSW Police Integrity Commission, or any other agency that is prescribed by regulation. This will mean that a defence is available when an officer of those agencies engages in activities ancillary to

telecommunications interception.

2. 5 Any regulations prescribing agency employees as a 'law enforcement officer' must be tabled in Parliament and are subject to disallowance by either House.

Senator Chris Ellison, Minister for Justice and Customs, Second Reading Speech, Senate Hansard, 16 March 2005, p. 1.

2 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill 2005, Bills Digest No. 14 7 2004-05, pp 11-12. Chapter 2 draws heavily on this paper.

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2.6 The proposed amendment will commence retrospectively on 1 March 2005. This is the date that the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No.2) 2004 commenced.

Schedule 2-Amendment of the Telecommunications (Interception) Act 1979

Part 1 -Emergency Services

2. 7 At present, subsections 6(2A) and (2B) of the TI Act provide that listening to or recording communications to prescribed emergency services numbers operated by the police, a fire service or an ambulance service does not constitute an interception for the purposes of the TI Act. Item 1 of Schedule 2 of the Bill repeals subsections 6(2A) and (2B).

2.8 Items 3 and 4 insert new subsections 7(2) and (3) into the TI Act. The effect of these new subsections is that the interception of communications made to or from a telecommunications service that is located within premises that are declared as an emergency service facility will be exempted from the general prohibition on the interception of telecommunications contained in subsection 7(1) of the TI Act. The term 'premises' is defined in section 5 of the TI Act as including any land, any structure, building, aircraft, vehicle, vessel or place (whether built on or not), and any part of such a structure, building, aircraft, vehicle, vessel or place.

2.9 The effect of Items 3 and 4 is that calls made within premises that are declared as an emergency service facility may be lawfully recorded without a warrant and without the need for an automated or manual warning that recording will occur.

2.10 The Bill also effects other changes to provisions relating to emergency services. These include the following:

• the exemption will apply to 'emergency services facilities' rather than 'emergency services numbers', meaning that 'hundreds, if not thousands, of numbers'3 will be covered. There are only three numbers currently prescribed for the purposes of the TI Act (000, 106 and 112);

• unlike the existing provision which only covers calls made from emergency services numbers, the amendments will potentially capture calls made from as well as to emergency services facilities;

• as well as police, fire and ambulance services, an 'emergency services facility' will include services for despatching or referring matters to the police, fire service or ambulance services (which is intended to capture outsourced services); and

3 Senator Chris Ellison, Minister for Justice and Customs, Second Reading Speech, Senate Hansard, 16 March 2005 , p. 1.

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• unlike the current exemption in the TI Act which applies to a person 'lawfully engaged in duties', 4 there is no requirement in the Bill for emergency services interceptions to occur lawfully in the course of a person's duties.5

2.11 One of the major changes proposed by the Bill is that under new subsections 7(3AA) and (3AB), the Attorney-General may, by written instrument, declare 'premises' to be an 'emergency services facility' if the Attorney-General is satisfied that certain conditions are met. The Bill provides that the Attorney-General may only declare premises to be an 'emergency services facility' if he or she is satisfied that the premises are operated by a police, fire, ambulance or related service for the purpose of dealing with requests for assistance in emergencies.

2.12 New subsection 7(3AC) is included to clarify that the Attorney-General's declaration is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (the Legislative Instruments Act). Currently, 'emergency service numbers' are prescribed by regulation.6 An important difference between an instrument that is not a legislative instrument and a regulation is that the

former is not subject to parliamentary scrutiny, need not be tabled in Parliament and is not subject to parliamentary disallowance.7

2.13 The Explanatory Memorandum (EM) states that the reason a declaration under new subsection 7(3AB) is not a legislative instrument is to 'ensure that the locations of emergency services facilities are not publicly available'. 8

The EM states

further that:

No attention is drawn to the locations of these emergency services facilities, which are in as innocuous a location as possible. These facilities represent critical operational infrastructure which needs close protection as their loss would endanger the public for as long as these services were unavailable. There are few benefits in having the location of these facilities made public, and any that do exist are far outweighed by the potential risks.

9

2.14 The amendments relating to emergency services commence on proclamation or six months after Royal Assent, whichever is earlier. They do not operate retrospectively and therefore may expose some emergency services workers (such as

4 Subsection 6(2B).

5 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/2005, Bills Digest No. 147 2004-05, p. 13 .

6 Telecommunications (Interception) Regulations 1987, reg 2A .

7 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/2005, Bills Digest No. 147 2004-05, p. 13 .

8 Explanatory Memorandum, p. 5.

9 Explanatory Memorandum, p. 5.

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those who may have recorded conversations on numbers other than 000, 106 and 112) to penalties under the TI Act.

Part 2 -Interception by radiocommunications inspectors

2.15 Items 5-7 amend subsection 7(2) of the TI Act to create an exception to the general prohibition against the interception of communications to allow the interception (without a warrant) by the Australian Communications Authority (ACA). The exception is limited to interception in the performance of a statutory spectrum management function, or the exercise of a related power, under the Australian Communications Authority Act 1997 or the Radiocommunications Act 1992. The interception must be in the course of identifying the source of interference to critical radiocommunications frequencies.

2.16 The EM states that, while a radiocommunications network is not generally subject to the TI Act, the TI Act will apply where a radiocommunications network is connected to the telecommunications system. To the extent that the TI Act applies to a radiocommunications network, the ACA is prevented from intercepting radiocommunications where they interconnect with fixed line telecommunications. According to the EM, the Bill will remove an impediment to the effective performance of an important statutory function with potentially significant consequences by providing a limited exception to this prohibition. 10

Part 3 -Ancillary offences

2.17 The TI Act enables law enforcement interception warrants to be granted in relation to 'class 1' and 'class 2' offences. 'Class 1' offences include murder, kidnapping, narcotics offences, terrorism offences, and ancillary offences involving aiding or conspiring to commit other 'class 1' offences. 'Class 2' offences include offences punishable for life or a period of at least 7 years where the offender's conduct involves death or serious personal injury, drug trafficking, serious fraud, bribery, dealing in child p*rnography, people smuggling, money laundering or cybercrime.

11

2.18 Item 8 of the Bill expands the definition of 'class 1' offence in the TI Act to include conduct comprising the offence of accessory after the fact. The effect of this provision is that a 'class 1' telecommunications interception warrant will be available in relation to a person who is an accessory after the fact in relation to a 'class 1'

offence.

10 Explanatory Memorandum , p. 6.

11 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/2005, Bills Digest No. 147 2004-05, p. 4.

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Part 4- Civil forfeiture proceedings and named person warrants

2.19 The amendments in Part 4 of the Bill are the Federal Government's statutory response to three recommendations made by the Sherman Report.

2.20 The origins of the Sherman Report can be traced to a recommendation made by this committee in relation to its inquiry into the Telecommunications (Interception) Legislation Amendment Bill 1999 (the 1999 Bill). The 1999 Bill, which became the Telecommunications (Interception) Legislation Amendment Act 2000, contained a number of important amendments to the TI Act, particularly the addition of 'named person warrants'. 12

2.21 While the committee recommended that the 1999 Bill proceed, it also recommended that the Bill 'provide for a review of its operations within three years of coming into effect', having regard to the need for the new named person warrant, the adequacy of safeguards and the adequacy of reporting mechanisms. 13

2.22 The Federal Government responded to the committee's report by agreeing to a review of the operation of the Bill, to take place within three years of the Bill coming into effect. The former head of the National Crime Authority, Mr Tom Sherman AO, was asked to complete the review.

2.23 The Sherman Report was completed in June 2003. It concluded that the regulatory regime in relation to the TI Act generally contained adequate safeguards and reporting mechanisms and had a strong compliance culture which was well audited by the inspecting authorities. However, it also made several recommendations which envisaged statutory changes, along with procedural and administrative

changes.14

2.24 Item 9 of Schedule 2 of the Bill substitutes new paragraph 6K(c) of the TI Act to include civil forfeiture proceedings within the meaning of 'proceedings for the confiscation or forfeiture or for pecuniary penalty' for the purposes of paragraph 5B(b) of the TI Act. The effect of this amendment, which implements Recommendation 7 of

12 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/2005, Bills Digest No. 147 2004-05, p. 8.

13 Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the Telecommunications (Interception) Legislation Amendment Bill 1999, May 2000, p. vii .

14 Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/ 2005, Bills Digest No. 147 2004-05 , p. 9.

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the Shennan Report, is to allow the use of information lawfully obtained (with a warrant) under the TI Act in aid of civil forfeiture. 15

2.25 Item 9 also removes the list of Commonwealth and state/territory proceeds of crime legislation currently contained in paragraph 6K( c) of the TI Act. It will instead provide the power to prescribe by regulation such relevant Commonwealth and state/territory legislation as necessary. The regulation will be a legislative instrument and subject to parliamentary scrutiny.

2.26 Item 10 amends section 84 of the TI Act to require the Ombudsman to include in its annual report to the Minister a summary of the telecommunications interception inspections conducted in the relevant year, together with a summary of any deficiencies identified and any remedial action taken. The EM states that the amendment implements Recommendation 6 of the Sherman Report.

2.27 Items 12 and 14 amend section 100 of the TI Act which deals with the statistics that must be included in the Attorney-General's annual report to Parliament. The amendments implement Recommendation 4 of the Shennan Report. They will require the report to include aggregate statistics about:

• the number of applications for named person warrants, telephone applications, renewal applications, applications that involved entry onto premises, and how many named person warrants were issued subject to conditions;

• how many named person warrants involved the interception of a single telecommunications service, how many involved the interception of between 2-5 services, 6-10 services and more than 10 services; and

• the total number of telecommunications services intercepted by way of named person warrants.

2.28 These figures will also be broken down by each relevant Commonwealth and state agency.

Part 5 -Employees of carriers

2.29 The purpose of Part 5 is to clarify the expression 'employee of a carrier' as it appears in the TI Act. 16 Item 15 defines an 'employee of a carrier' as a person 'who is engaged by the carrier or whose services are made available to the carrier'. This would

15 Material obtained with a warrant issued for the investigation of 'class 1' and 'class 2' offences under the TI Act can already be used in conviction-based restraining order proceedings. However, such material cannot be used in civil forfeiture proceedings that are not conviction­ based and where a civil standard of proof is used to determine the derivation of the proceeds of crime: Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bil/2005, Bills Digest No. 147 2004-05, p. 14.

16 Explanatory Memorandum, p. 9.

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include anyone who might not have been employed in a strict legal sense by a carrier, for example contractors.

2.30 The definition of the term will apply to all references to an 'employee of a carrier' in the TI Act. The EM states that the term has always been interpreted as including contractors or persons working for a carrier while employed by a company that is a subsidiary of, or related to, the carrier. Therefore, since the provision does not seek to alter the definition, the amendment will take effect from the date of commencement of the TI Act (1 June 1980). 17

17 Explanatory Memorandum, p. 9.

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CHAPTER3

KEY ISSUES

3.1 The majority of submissions received by the committee expressed support for particular aspects of the Bill's proposed operation 1• Only two submissions provided detailed analysis of the Bill in a broader sense. 2 These submissions expressed strong opposition to several parts of the Bill.

3.2 This chapter discusses the main issues and concerns raised in submissions in relation to :

• expansion of the defmition of 'law enforcement officer' in the Criminal Code (Schedule 1 of the Bill);

• exemption for telecommunications interception to and from an 'emergency services facility' in the TI Act (Part 1 of Schedule 2);

• telecommunications interception by radiocommunications inspectors under the TI Act (Part 2 of Schedule 2);

• expansion ofthe definition of'class 1' offence in the TI Act to include conduct comprising the offence of accessory after the fact (Part 3 of Schedule 2);

• civil forfeiture proceedings and named person warrants (Part 4 of Schedule 2); and

• clarification ofthe term 'employee of a carrier' (Part 5 of Schedule 2).

Definition of 'law enforcement officer' (Schedule 1)

3.3 Three submissions commented specifically on the proposed expansion of the definition of 'law enforcement officer' in the Criminal Code to include four state-based organisations and 'any other agency that is prescribed by the regulations' (all of which would be capable of intercepting communications under the TI Act).

3.4 Western Australia Police Service (W APS) submitted that the proposed extension of the definition to include a reference to the W A Corruption and Crime Commission 'will assist that agency with its investigative powers concerning corruption within the Public Sector and organised crime'.3

Queensland Police Service/National Emergency Communications Working Group, Submission I; South Australia Police, Submission 2; Australian Communications Authority, Submission 3; Commonwealth Director of Public Prosecutions, Submission 4; Western Australia Police Service, Submission 6; Australian Federal Police, Submission 7; Tasmania Police, Submission 9; New South Wales Police, Submission 10.

2 Law Council of Australia, Submission 5; New South Wales Council for Civil Liberties, Submission 8.

3 Submission 6, p. l.

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3.5 The Law Council of Australia (the Law Council) expressed concern that the reference in proposed paragraph 473.l(k) to 'a member or employee of any other agency that is prescribed by the regulations' as a 'law enforcement officer' is extremely wide:

This paragraph gives wide discretion to the Attorney-General and Minister for Justice and Customs conferring broad powers upon members of agencies not fully defined by regulation. It is unclear from the Bill, Explanatory Memorandum or second reading speech which agencies are envisaged by this provision. Section 473.1 of the Criminal Code currently defmes Jaw enforcement officers as members of police forces of Australia or another country, members of the D[irector] of P[ublic] P[rosecutions] and other law enforcement agencies. This new paragraph may allow private security frrms, or agencies with little control or monitoring to have employees or members classified as law enforcement officers, with all the powers oftelephone interception of the Interception Act. 4

3.6 The Law Council suggested that paragraph 473.I(k) should be amended to specify more clearly which agencies may be prescribed. 5

3.7 The New South Wales Council for Civil Liberties (NSWCCL) articulated similar concerns, although it went further by arguing that proposed paragraph 4 73 .I (k) should be removed from the Bill:

No limit is set on what kinds of agencies may be included ... [T]he power to determine the range of bodies given interception powers [should] be kept in [the] hands ofparliament. 6

3.8 Further, NSWCCL argued that:

The legitimacy for providing the means to intercept depends on the legitimacy of the provision of the powers to do so. There is ground for concern that the range of offences that the bodies investigate is determined by State acts, not acts of the Commonwealth. An amendment to the NSW Crimes Commission Act, for example, would enable officers of the Crimes Commission to seek warrants in relation to crimes beyond its current concern with drug offences. 7

Exemption for an 'emergency services facility' (Part 1 of Schedule 2)

3.9 Most submissions received by the committee focussed their comments on the proposed provisions relating to the exemption for an 'emergency services facility'. Submissions from the Queensland Police Service/National Emergency Communications Working Group (NECWG), South Australia Police (SAPOL),

4 Submission 5, p. 5.

5 Submission 5, p. 5.

6 Submission 8, p. 2.

7 Submission 8, p. 2.

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W APS, the AFP, Tasmania Police and New South Wales Police expressed support for the exemption from the general prohibition on the interception of communications made to, or from, a declared 'emergency services facility'. 8

3.10 However, the Law Council and the NSWCCL were highly critical of the proposed provisions in relation to emergency services. They argued, amongst other things, that:

• there is little apparent justification for such increased ambit of the power to intercept telecommunications;

• the range of communication devices and the scope of information captured by the proposed amendments is extremely wide;

• the exemption of declarations of an 'emergency services facility' from the scope of the Legislative Instruments Act significantly and inappropriately weakens scrutiny and accountability mechanisms; and

• there is no requirement in the Bill for emergency services interceptions to occur lawfully in the course of a person's duties.

3 .11 These arguments are set out more fully below.

Increase in permitted interceptions

3.12 NSWCCL contended that the 'prime purpose of the [TI Act] is to outlaw interceptions of telecommunications, not to create a large class of permitted interceptions'9 and that any increase in permitted interceptions of telecommunications results in the TI Act moving further away from its original purpose:

Each inclusion of new grounds for interception permits further invasion of the privacy of innocent persons. Each extension of the agencies permitted to intercept increases the likelihood of misuse. Proposals that can only be supported on the grounds that they are "important legislative tool[s] not available to enforcement agencies" should be rejected. 10

3.13 NSWCCL also pointed out that the number of telecommunications warrants issued in Australia has increased without a commensurate increase in the number of relevant crimes reported or convictions recorded:

The number of warrants issued annually in Australia under the [TI Act] bas been increasing substantially, to the point where it exceeds the number issued for similar purposes in the United States of America. There are few refusals of requests for warrants, and none from any member of the Administrative Appeals Tribunal. There bas been no significant increase in the number of such crimes reported, to justify this increase. Nor bas there

8 Submission 1; Submission 2; Submission 6; Submission 7; Submission 9; Submission 10.

9 Submission 8, p. I.

10 Submission 8, p. I.

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been a commensurate increase in criminal convictions of the most serious crimes. 11

3.14 The Law Council agreed that '(i)t is unclear from the Explanatory

Memorandum or second reading speech what justification is advanced for the increased ambit of the power' in relation to emergency services facilities. 12

Range of communication devices/scope of information

3.15 Both the Law Council and NSWCCL took issue with the potential breadth of the emergency services provisions in the Bill. The Law Council stated that, in its view:

The scope of information that the amendments of the Bill capture .. .is extremely wide. The Bill will, for example, allow the interception of phone calls, email and potentially mobile telephone calls to or from the emergency service facility. Despite the increased reporting and statistical observation of interceptions contained in the Bill, the ability to intercept a communication of this kind from an emergency service fac ility, potentially of a personal nature, is subject to little control. Personal communications of personnel of these services may be intercepted and recorded, without a warrant and without notice. 13

3.16 The Law Council recommended that 'controls be placed on the type of communications and the instances in which these communications to or from an emergency services facility can be intercepted'. 14

3.17 NSWCCL also commented on the wide range of communications encompassed by the Bill:

All telecommunications-by fax, email, web access, mobile, text message or telephone not connected with emergencies-may be recorded, without warrant or advice. 15

3.18 NSWCCL were unsure why such broad application of the exemption would be necessary:

There may be point in recording a call to an emergency service, for vital information may be missed by the person taking the call. The justification given in the Second Reading Speech of the Minister for Justice for the proposed extension is that emergency services use hundreds of numbers behind the scenes in responding to a call. It is not clear to the [NSW)CCL

11 Submission 8, p . 1.

12 Submission 5, pp 3-4.

13 Submission 5, p. 4.

14 Submission 5, p. 4.

15 Submission 8, p. 3.

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how recording all these calls will assist the provision of emergency aid. What might they hope to discover?16

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3.19 In its submission, W APS made some operational observations about the scope of the exemption in relation to personal mobile phone calls and emails within an 'emergency services facility'. In relation to personal mobile calls, it submitted that the only time they would be recorded by W APS would be in circ*mstances where an employee is under investigation. In any case, such a recording would not take place in the W APS Communications Centre but by the Telecommunications Interception Unit 'in accordance with a warrant obtained in relation to that specific mobile phone ID'.17

3. 20 W APS also pointed out that:

.. . the recording of mobile telephone conversations both personal and those made over a Western Australia Police issued mobile telephone is a far more complex issue in general circ*mstances and cannot be recorded as a broad base connection ... The ability to capture conversations made to or from any mobile telephone within an emergency service facility is technically complex and costly.18

3 .21 Further:

... the technical ability to constrain interception of mobiles only to a small complex would seem problematic and there is a high risk that other (non Police staff) mobile users in the same area may also be recorded. Current W APS business rules do not allow the use of any mobile phones within the

Emergency Communications Centre.19

3.22 In relation to the interception of emails, W APS noted that the 'technical ability to isolate a small number of messages that are sent from an emergency services facility would also be difficult'. 20

Prescribing an 'emergency services facility'

3.23 The Law Council expressed reservations in relation to the exemption of declarations of an 'emergency services facility' from the scope of the Legislative Instruments Act under proposed subsection 7(3AC) of the Bill:

Without scrutiny of any kind, these provisions allow the Attorney-General to prescribe any facility he or she sees fit as an emergency facility , with no legislative requirement to justify the purpose or reason for doing so. Parliamentary scrutiny is an integral part of the Leg islative Instruments Act

16 Submission 8, p. 3.

17 Submission 6, p. l.

18 Submission 6, pp 1-2.

19 Subm ission 6, p. 2.

20 Submission 6, p. 2.

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2003 and to remove it weakens the regime of scrutiny and ministerial responsibility. 21

3.24 Further, the Law Council suggested that the Bill should be amended to remove proposed subsection 7(3AC) so that a declaration under proposed subsection 7(3AB) would be deemed a legislative instrument for the purposes of the Legislative Instruments Act:

This will allow appropriate scrutiny of the power by Parliament. If necessary, a provision should be inserted which removes the requirement to detail the specific location of the facility from the information provided to Parliament to protect the interests of critical infrastructure, yet still gives sufficient information for Parliament to adequately monitor the regulatory power. 22

3.25 NSWCCL also noted its apprehension in this regard:

... there is no requirement for [declarations by the Attorney-General] to be made public, and it is clear that the intention is that they will not be. The Parliament will not have the power to over-ride them (save by fresh legislation).

There is nothing in the Bill to prevent a future (rogue} Attorney-General from declaring all police premises emergency facilities?

3.26 NSWCCL submitted that, in any case, '(i)t would not be difficult for,.an emergency service to restrict emergency traffic to a limited number of phone lines and radio :frequencies'.24 It also suggested that the Bill should be amended to restrict 'the recording of communications to those relating to an emergency current at the time of the call' and that '(t)he determination of premises should be restricted by reference to the kind of service provided'. 25

No requirement to be in the course of a person's duties

3.27 As the committee noted in Chapter 226, unlike the current exemption in the T1 Act which applies to a person 'lawfully engaged in duties', there is no requirement under the Bill for emergency services interceptions to occur lawfully in the course of a person's duties. NSWCCL speculated that this has been done 'to allow communications by other means than telephones to be included'27 but was unsure why such an approach was being taken:

21 Submission 5, pp 4-5.

22 Submission 5, p. 5.

23 Submission 8, p. 4.

24 Submission 8, p. 4.

25 Submission 8, p. 4.

26 Para 2.10.

27 Submission 8, p. 3.

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Again, it is not clear what it is hoped will be gained. People do not report emergencies by text message or by email. Requests for emergency back-up might be sent by radio or mobile; but they are sent to dedicated receivers, lest they be lost in the general noise. 28 ·

3.28 Further, NSWCCL commented that such a provision might be problematic in practice, possibly encouraging illicit behaviour:

This proposal would allow a rogue police officer (a species that has been found in Australia) to intercept any conversation through a police station (or indeed to initiate and record one), evading the accountability procedures of the Act and subverting its principal intention, to outlaw interception.29

Interception by radiocommunications inspectors (Part 2 of Schedule 2)

3.29 This part of the Bill was supported by those submissions that made comment on it. 30

3.30 The ACA stressed the operational significance of the proposed amendments from its point of view in relation to radiocommunications inspectors. It submitted that the amendments are 'a prudent regulatory response that will allow

radiocommunications inspectors to effectively perform their spectrum management functions for the benefit of the community'.31

3.31 The ACA explained that the spectrum management functions undertaken by radiocommunications inspectors employed by the ACA include investigating interference to radiocommunications services, investigating interference to radio and television broadcasting reception, and investigating offences relating to the operation

of radiocommunications transmitters. Further, it noted that the ACA places high priority on investigating interference that affects safety of life services. 32

3.32 The ACA pointed out that, in many cases, radiocommunications inspectors have been able to perform their functions, including aural monitoring of radiocommunications, without contravening the TI Act, since the interception of communications provided solely by means of radiocommunications is not prohibited

by the TI Act. However:

It has now become commonplace for radiocommunications systems to be connected to a telecommunications network. In such cases aural monitoring and recording of the radiocommunications system may contravene the TI Act. ACA investigators may not, in the first instance, know if the

28 Submission 8, p. 3.

29 Submission 8, p. 3.

30 SAPOL, Submission 2; ACA, Submission 3; NSWCCL, Submission 8.

31 Submission 3, p. 2.

32 Submission 3, p. 1.

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radiocommunications traffic they are monitoring is carried over a telecommunications network. In some instances, the system concerned may switch between a stand alone radiocommunications system and a system that connects to a telecommunications network. For example, high frequency radio systems used for outback communications have this facility as do some taxi services in regional areas. At present radiocommunications inspectors must discontinue aural signal monitoring and recording when it becomes apparent that the radiocommunications being monitored are carried over the telecommunications network. 33

3.33 The ACA also noted that the ability of radiocommunications inspectors to listen to the information carried by a radio system is critical to the early detection and suppression of interference and unauthorised transmissions. Its submission gave examples of interference incidents that have affected safety services:

ACA radiocommunications inspectors have investigated emissions from imported cordless telephones that interfered with Air Traffic Control frequencies at major airports and nuisance calls to the 000 emergency call services in Melbourne using a taxi radiocommunications system. This simply underlines the need for radiocommunications inspectors to be able to legally intercept radiocommunications and telecommunications in the performance of their spectrum management functions. 34

3.34 NSWCCL commented that, while it had no objection to the proposed amendment in relation to radiocommunications inspectors, 'any information concerning the content of such material should be isolated from the provisions in the [TI Act] that permit the use of legally obtained material for other purposes'.35

Ancillary offences (Part 3 of Schedule 2)

3.35 Several submissions expressed specific support for the proposed amendment in relation to expansion of the definition of 'class 1' offence in the TI Act to include conduct comprising the offence of accessory after the fact. 36 For example, SAPOL submitted that it has experienced 'recent and current Major Crime investigations that would have been assisted by the amendment being in force'. 37

3.36 SAPOL submitted further that the amendment to include accessory after the fact will be particularly useful for SAPOL since accessory after the fact is no longer an offence in South Australia. 38

33 Submission 3, p. 2.

34 Submission 3, p. 2.

35 Submission 8, p. 4.

36 SAPOL, Submission 2; WAPS, Submission 6; Tasmania Police; Submission 9; New South Wales Police, Submission 10.

37 Submission 2, p. 1.

38 Submission 2, p. 1.

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3.3 7 W APS submitted that the amendment will assist it and other law enforcement agencies in Western Australia to combat organised crime.39

3.38 However, the Law Council and NSWCCL held serious misgivings about this aspect of the Bill. The Law Council noted that the amendment would allow a warrant to intercept the communications of a person who may be under suspicion for receiving or assisting a person who is believed to have committed a 'class 1' offence. It argued that such a power 'has the potential to be abused to intercept and record

communications of a person who is only suspected of aiding and abetting after the fact'. 40

3.39 The Law Council continued:

There is no further justification for this new power other than comments in the Explanatory Memorandum that "[Because this power is not presently available] ... an important investigative tool is not available to law enforcement agencies ... " There is no further justification, no precedent and no statistical evidence to substantiate the removal of important rights of citizens to privacy in their telecommunications. The argument expressed in the Explanatory Memorandum is simply that law enforcement agencies would like this power, and the Bill will deliver it to them. There is no justification, no balancing of the rights of individual citizens weighed

against this desire for the power. 41

3 .40 The Law Council suggested that the ancillary offence provision be removed from the Bill since it 'is an unjustified removal of civil liberties and has the potential to be misused and cause a significant breach of the privacy and civil liberties of those only suspected of crime'. 42

3.41 NSWCCL was similarly critical:

It is an example of the slippery slope: of a dubious extension of the powers to intercept, especially given the problems created by the definitions of terrorism offences, and some of the circ*mstances in which profits are made from a crime. While aiding and abetting a murder before the event

creates an emergency, helping a person dispose of the profit on a map recklessly supplied to someone who turns out to be a member of a terrorist organisation does not. 43

3.42 NSWCCL also argued that:

39 Submission 6, p . 2.

40 Submission 5, p. 5.

41 Submission 5, p. 5.

42 Submission 5, p. 6.

43 Submission 8, p. 4.

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The proposal that these offences be made class one (rather than class two) offences is not justified. There is no reason why a judge or an A[dministrative] A[ppeals] T[ribunal] member should be prevented from considering the gravity of an offence and privacy considerations before issuing a warrant allowing interception in relation to these offences.44

Civil forfeiture proceedings and named person warrants (Part 4 of Schedule 2)

3.43 The committee received submissions from several organisations expressing broad-level support for the proposed amendments in relation to civil forfeiture proceedings and named person warrants.45

3.44 However, NSWCCL were strongly opposed to Item 9 of Schedule 246 and suggested that it be removed from the Bi11.47 Amongst other things, it contended that:

The civil forfeiture acts are obnoxious. They enable persons to have their assets removed if it is held that it is more likely than not that they have committed a crime. These persons do not have to have been convicted of the crime. Instead, the acts are used where no conviction is possible, because the guilt of the accused person cannot be proved beyond reasonable doubt. 48

3.45 In relation to Items 10, 12 and 14 of Schedule 2, 49 NSWCCL welcomed the

'amplification of the requirements on the ombudsman' and the requirement for agencies to report annual statistics relating to named person warrants.50 However, NSWCCL were concerned that Recommendation 5 of the Sherman Report is not being implemented by the Bill. 5 1 It argued that:

Accountability procedures for ASIO are particularly important, given both its past history and the necessary secrecy under which it operates. ASIO is not being asked to reveal its targets, nor how many they are, nor to indicate what kinds of interceptions it uses, nor anything else about its methodology.

44 Submission 8, p. 4.

45 SAPOL, Submission 2; AFP, Submission 7; Tasmania Police; Submission 9; New South Wales Police, Submission 10.

46 See explanation in paras. 2.24 & 2.25.

47 Submission 8, p. 6.

48 Submission 8, p. 5.

49 See explanation in paras. 2.26 & 2.27.

50 Submission 8, p. 6.

51 Recommendation 5 of the Sherman Report was as follows: 'ASIO should publish in the public version of its Annual Report the total number ofTI warrants and named person warrants applied for, refused and issued in the relevant reporting year.' See further Jennifer Norberry, Parliamentary Library, Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bi/12005, Bills Digest No. 147 2004-05, pp 10-11.

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Such limited reporting would not enable any target person or organisation to take counter-measures. 52

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3.46 NSWCCL also submitted that the number of telecommunications interception warrants refused should be published53 since this 'is important information, not only for ASIO's accountability, but also for its reputation, and the confidence with which citizens can support it'.

54 It suggested that the Bill be amended to implement Recommendation 5 ofthe Sherman Report. 55

3.47 NSWCCL also objected strongly to the failure of the Bill to implement Recommendation 8 of the Sherman Report. 56 It noted that:

Legislation that restricts keeping records of originals of interceptions but permits the keeping of copies is ill-conceived. All the reasons that apply to restricting the availability of originals apply also to copies.

It is true that some forms of copying are difficult to police. But that does not mean that they should be legalised. 57

Clarification of 'employee of a carrier' (Part 5 of Schedule 2)

3.48 Only two submissions commented on, and supported, the proposed clarification of the definition of 'employee of a carrier'. 58 The Commonwealth Director of Public Prosecutions (DPP) submitted that: This definition widens the concept of "employee of a carrier" to include

contractors or people working for a subsidiary company of the carrier. This office welcomes the widening of this definition as it reflects the practice of carriers to use the services of contractors and, in particular, it would allow evidentiary certificates to be issued by a Managing Director or Secretary of a carrier under section 61(1) of the Act which included acts or things done by contractors to the carrier. 59

52 Submission 8, p. 6.

53 As reco=ended in Reco=endation 5 of the Sherman Report.

54 Submission 8, p. 6.

55 Submission 8, p. 6.

56 Recommendation 8 of the Sherman Report was: 'The definition of restricted record which existed prior to the 2000 amendments to the Interception Act should be reinstated.' The 2000 amendments resulted in copies of records being exempt from the record-keeping and destruction requirements of the 11 Act. See further Jennifer Norberry, Parliamentary Library,

Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill 2005, Bills Digest No. 147 2004-05, p. 11.

57 Submission 8, p. 7.

58 DPP, Submission 4; Tasmania Police, Submission 9.

59 Submission 4, p. 1.

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The committee's view

3.49 The committee acknowledges submissions and evidence that were strongly supportive of the Bill. However, the Committee also notes the serious concerns raised by some submissions and witnesses. In particular, the committee is mindful of the apprehension expressed by the Law Council and NSWCCL, particularly with respect to the proposed exemption for telecommunications interception to and from a declared 'emergency services facility'.

3.50 In light of these concerns, the committee encourages further consideration of the Bill's provisions by the Blunn review of regulation of access to communications under the TI Act. The Government has appointed Mr Tony Blunn AO to review of the regulation of access to communications under the TI Act. The review will consider the effectiveness and appropriateness of the Act in light of new and emerging communications technology. The Committee also understands that the review will look into relevant privacy concerns and the need to balance these with the benefits stemming from telecommunications interception carried out by enforcement and national security agencies. Key law enforcement and national security agencies, representatives from the telecommunications industry, civil liberty advocates and the legal profession are to be consulted. 60

Definition of 'law enforcement officer'

3.51 The committee notes the concerns raised in relation to the proposed expansion of the definition of'law enforcement officer' under proposed paragraph 473.l(k) of the Bill. The committee acknowledges advice from the Attorney-General's Department (the Department) that the aim of the provision as currently drafted is to provide a practical way of allowing new, restructured or renamed agencies to come within the operation of the defmition in the future. 61 The committee notes further that, under paragraph 473.1(k), any such agencies would be prescribed by regulation for the purposes of the definition (which is subject to disallowance by Parliament). Nevertheless, the committee is of the view that the Bill should be amended to specify more clearly which agencies may be prescribed or included in the definition.

Recommendation 1

3.1 The committee recommends that proposed paragraph 473.1(k) of the Bill be amended to identify more clearly which agencies may be included for the purposes of the definition of 'law enforcement officer' in the Criminal Code Act 1995.

60 For further information see www.ag.gov.au.

61 See Committee Hansard, 15 June 2005.

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Exemption for an 'emergency services facility'

3.52 The committee notes the need for emergency services call centres to be able to record incoming and outgoing communications. It also appreciates that exempting such recording under the TI Act by means of references to telephone numbers is impractical. However, the committee also acknowledges arguments criticising the broad nature of the Bill's provisions and its potential intrusive consequences.

3.53 The committee notes the significant consequences of declaring premises to be an 'emergency services facility'. As explained elsewhere, it will mean that a very wide range of communications (including information of a personal nature and information unrelated to emergencies) within, and to and from, any premises designated as an 'emergency services facility' may be lawfully recorded without the need to obtain a warrant and without the need for any warning that this recording will occur. The committee acknowledges that the Bill provides that the Attorney-General may only declare premises to be an 'emergency services facility' if he or she is satisfied that the premises are operated by a police, fire, ambulance or related service for the purpose of dealing with requests for assistance in emergencies. However, the exercise of this power - and the extent to which these prerequisites are met - does not appear to be

subject to parliamentary or other scrutiny. One would reasonably expect executive powers to exempt law enforcement from regulatory requirements (that is, such as the requirement to obtain a warrant) to be subject to scrutiny and review.

3.54 Departmental representatives acknowledged the lack of scrutiny, but suggested that any potential misuse of this power would be avoided by the risk of evidence gathered by telecommunications interceptions being rendered inadmissible on the grounds of illegality.62 However, the committee has serious reservations about this constituting the primary check on the integrity of the powers since information obtained in such a way may not necessarily be relied on as evidence in court proceedings and, even if it were, this would be well after the power has been

exercised.

3.55 Of particular concern to the committee are proposed subsections 7(3AA), (3AB) and (3AC). These new subsections denote a major change from the current provisions in the Tl Act with respect to an 'emergency services number'. The committee acknowledges that emergency services facilities 'represent critical

operational infrastructure which needs close protection as their loss would endanger the public for as long as these services were unavailable'.63 However the committee is not satisfied that this warrants any declarations of an 'emergency services facility' as being exempt from parliamentary scrutiny.

3.56 In this context, the committee notes subsections 6(3) and (4) of the TI Act relating to the permitted interception without a warrant of telephone calls to publicly

62 See Committee Hansard, 15 June 2005.

63 Explanatory Memorandum , p. 5.

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listed Australian Security Intelligence Organisation (ASIO) numbers. These subsections were inserted into the TI Act by the Telecommunications (Interception) Amendment Bill 2004 (the TI Bill), which was the subject of an inquiry conducted by this committee. The TI Bill removed the requirement that ASIO notify callers that their calls are being recorded.

3.57 In its report in relation to the TI Bill64 , the committee noted that the proposed amendments were restricted to incoming calls only, and to calls made to publicly-listed numbers. The committee was of the view that, while the benefits of such an approach (or at least the arguments in support of such an approach) are limited, the invasion ofthe privacy of individuals would be minimal. 65

3.58 The same cannot be said about the Bill's proposed amendments in relation to prescribing an 'emergency services facility' which include no such restrictions. For example, as the Minister for Justice and Customs has stated the operation of the Bill may capture 'hundreds, if not thousands, of numbers'. 66 The committee is concerned that the balance between protecting the interests of law enforcement and protecting the privacy of individuals, including employees of an 'emergency services facility', may not be met appropriately in this case.

3.59 Therefore, the committee is of the view that any declaration under proposed subsection 7(3AB) should be deemed a legislative instrument for the purposes of the Legislative Instruments Act to allow full and proper scrutiny by Parliament. However, in order to protect the interests of vital infrastructure, the committee considers that the Bill should provide that there is no requirement for the information provided to Parliament to detail the specific location of the emergency services facility. Information contained in the relevant legislative instrument could include identification of the town or city, the region and the state/territory in which the 'emergency services facility' is located. Specification of the facility and the service concerned in general terms without identification of location would not, in the committee's view, compromise the security of such facilities, but would enable appropriate parliamentary scrutiny of this ministerial power.

3.60 In relation to concerns that the Bill does not contain a requirement for emergency services interceptions to occur lawfully in the course of a person's duties, the committee notes advice from the Department that this was a drafting oversight. 67

64 Senate Legal and Constitutional Committee, Provisions of the Telecommunications (Interception) Amendment Bill 2004, March 2004.

65 Senate Legal and Constitutional Committee, Provisions of the Telecommunications (Interception) Amendment Bill 2004, March 2004, pp 25-26.

66 Senator Chris Ellison, Minister for Justice and Customs, Second Reading Speech, Senate Hansard, 16 March 2005, p. 2.

67 See Committee Hansard, 15 June 2005.

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Recommendation 2

3.2 The committee recommends that the Bill be amended to provide that any declaration of an 'emergency services facility' under proposed subsection 7(3AB) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Recommendation 3

3.3 Further to Recommendation 2, the committee recommends that the Bill be amended to authorise any declaration of an 'emergency services facility' under proposed subsection 7(3AB) not to include details of the specific location of an 'emergency services facility', but at the same time contain adequate information to allow appropriate scrutiny by Parliament (such as the name of the service and the region in which it is located, if possible).

Recommendation 4

3.4 The committee recommends that the Bill be amended to require

emergency services telecommunications interceptions 'to occur lawfully in the course of a person's duties'.

Ancillary offences

3.61 The committee acknowledges the explanation given by the Department at the hearing in relation to the Bill's ancillary offence provision.68 The committee notes that the ancillary offences are not insubstantial offences. They attract significant penalties. As such, the committee considers it reasonable that they be treated in the same way as other criminal offences for the purposes of telecommunications interception. The committee also notes evidence that recourse to telecommunications interception for these ancillary offences will be subject to the same checks and balances as those that apply to primary offences.

3.62 The committee acknowledges concerns raised in relation to Recommendation 5 of the Sherman Report. However, the committee notes that the Federal Government has formally rejected Recommendation 5 of the Sherman Report. Further, the committee notes that the Parliamentary Joint Committee on ASIO, ASIS (Australian

Secret Intelligence Service) and DSD (Defense Signals Directorate) did not recommend such a change. The Federal Government has also argued that ASIO discharges its accountability responsibilities by providing classified reports both to the Federal Government and the Opposition. In light of this, the committee does not

consider it necessary to revisit this issue in the context of the Bill.

68 See Committee Hansard, 15 June 2005.

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3.63 In relation to Recommendation 6 of the Sherman Report,69 the committee understands that the Bill proposes to amend section 84 of the TI Act to require the Ombudsman to include in its annual report to the Minister a summary of telecommunications interception inspections conducted in the relevant year, together with a summary of any deficiencies identified and any remedial action taken. The committee notes that this is at odds with Recommendation 6 of the Sherman Report which required a report to Parliament.

3.64 Representatives from the Department advised the committee that it is intended that the Department's annual report to Parliament prepared pursuant to the TI Act would include a summary of the information recommended by the Sherman Report. However, the committee notes that there would be no statutory obligation or requirement for the Attorney-General to table such information in Parliament. The committee is therefore of the view that this intention should be expressly specified in the TI Act.

Recommendation 5

3.5 The committee recommends that the Bill be amended to require that the Attorney-General Department's annual report prepared under Division 2 of Part IX of the Telecommunications (Interception) Act 1979 include a summary of telecommunications interception inspections conducted in the relevant year, together with a summary of any deficiencies identified and any remedial action taken (including with respect to emergency services telecommunications interceptions).

Recommendation 6

3.6 Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

Senator Nigel Scullion Acting Chair

69 Recommendation 6 of the Sherman Report was: 'All inspecting authorities should include in their annual reports to Parliament a summary of the TI inspections conducted in the relevant year together with a summary of any deficiencies identified as well as any remedial action taken.'

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Additional Comments and Points of Dissent by Senator Brian Greig on behalf of the Australian Democrats

The Australian Democrats welcome the fact that the Government has fmally responded to the recommendations made by Mr Tom Sherman AO in his Review of Named Person Warrants, which was completed in June 2003 . However, we are also frustrated that it has taken two years to respond to Mr Sherman's recommendations, given that the Parliament has debated at least two telecommunications interception bills during that time.

Mr Sherman's report sets out a number of constructive amendments for improving the current named person warrants regime, with a particular focus on improving accountability mechanisms. While the Democrats are pleased that the Government has decided to implement a number of these recommendations, we are disappointed that it has chosen not to implement others.

Most particularly, we are disappointed that the Government will not be implementing Recommendation 5 ofMr Sherman's report, which calls for the Australian Security Intelligence Organisation (ASIO) to publish in the public version of its Annual Report the total number of telecommunications interception warrants and named person warrants applied for, refused and issued in the relevant reporting year.

The Democrats have long advocated for the introduction of a basic public reporting mechanism in relation to ASIO's telecommunications interception activity. Indeed we have sought to amend a number of bills to achieve exactly this. On the most recent such occasion, the Government indicated that it would not support our amendment

because:

"Mr Tom Sherman conducted an independent review of parts of the telecommunications interception regime in June last year. He recommended that ASIO publish in the public version of its annual report the total number of warrants applied for, refused and issued in the relevant reporting year. The government have not yet made any decisions in relation to whether and in what form Mr Sherman's recommendations are to be implemented, and we believe that to do so on the run would be inappropriate.

1 "

The Government also indicated its belief that "a considered approach to Mr Sherman's report is the way to go". Yet, now that the Government has had two years to formulate a response to Mr Sherman's report, it has decided against this recommendation.

In doing so, it apparently disregarded the views of the Federal Privacy Commissioner, which were sought in March 2004 to assist the Government in formulating its

Senator the Honourable Chris Ellison, Minister for Justice and Customs, speaking to the Telecommunications (Interception) Amendment Bill 2004, I April2004, Senate Hansard, page 22648.

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response to the report. The Commissioner recently indicated that she supports Mr Sherman's recommendation that ASIO should publicly report on its interception activitl. The Democrats maintain our view that ASIO should be required to publicly report on the extent of its interception activity in Australia and we recommend that this Bill be amended to achieve this.

Recommendation:

That the Bill be amended to implement Recommendation 5 in Mr Sherman's Review of Named Person Warrants, so that ASIO is required to publish in the public version of its Annual Report the total number oftelecommunications interception warrants and named person warrants applied for, refused and issued in the relevant reporting year.

Senator Brian Greig

2 Office of the Privacy Commissioner , Submission No 48, Inquiry into the Privacy Act 1988.

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APPENDIX!

SUBMISSIONS RECEIVED

Submission Number Submittor

Queensland Police Service

2 South Australia Police

3 Australian Communications Authority

4 Commonwealth Director of Public Prosecutions

5 Law Council of Australia

5a Law Council of Australia

6 Western Australia Police Service

7 Australian Federal Police

8 New South Wales Council for Civil Liberties

9 Tasmania Police

10 New South Wales Police

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APPENDIX2

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COMMONWEALTH OF AUSTRALIA

Proof Committee Hansard

SENATE

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

Reference: Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill2005

WEDNESDAY, 15 JUNE 2005

CANBERRA

CORRECTIONS TO PROOF ISSUE This is a PROOF ISSUE. Suggested corrections for the Bound Volumes should be lodged in writing with the Committee Secre­ tary (Facsimile (02) 6277 5794), as soon as possible but no later tban:

Wednesday, 17 August 2005

BY AlTfHORITY OF THE SENATE

[PROOF COPY]

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INTERNET

The Proof and Official Hansard transcripts of Senate committee hear­ ings, some House of Representatives committee hearings and some joint committee hearings are available on the Internet. Some House of Representatives committees and some joint committees make avail­

able only Official Hansard transcripts.

The Internet address is: http://www.aph.gov.au!hansard To search the parliamentary database, go to : http:/ /parlinfoweb.aph.gov.au

209

SENATE

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

Wednesday, 15 June 2005

Members: Senator Payne (Chair), Senator Bolkus (Deputy Chair), Senators Greig, Kirk, Mason and Scullion

Participating members: Senators Abetz, Barnett, Bartlett, Mark Bishop, Brandis, Brown, Buckland, George Campbell, Carr, Chapman, Colbeck, Conroy, Eggleston, Chris Evans, Faulkner, Ferguson, Ferris, Harradine, Hogg, Humphries, Knowles, Lightfoot, Ludwig, Lundy, Mackay, McGauran, McLucas, Nettle, Robert Ray, Ridgeway, Sherry, Stephens, Stott Despoja, Tchen and Watson

Senators in attendance: Senators Kirk, Ludwig, Mason and Scullion

Terms of reference for the inquiry:

Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill2005

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WITNESSES

BAKER, Mr Sean, Lawyer, Law Council of Australia •..••...•.•......••....••.•...•..............•..............•..•.•....•......•..•. I

BIBBY, Dr Richard Martin, Committee Member, New South Wales Council for Civil Liberties ••.•••...... 6

CORBY, Superintendent Michael, New South Wales Police ..•..•••......•..•..•.•....•......••..•••..•......••.....•....•...•...... 9

GEORGE, Mr Anthony, Manager, Compliance and Technical Services, Communications Operations and Service Group, Australian Communications Authority ................................................... 15

GIFFORD, Mr Cameron, Senior Legal Officer, Security Law Branch, Attorney-General's Department .•.•••.•.••••.•.•••••••.•••..•...••.•..•.•....•••••..•...••.•....•.•...•.•••••••.•..•••.••...••..••.••.•.••.....•..........••.....••..••.•............. 15

LAMMERS, Federal Agent Rudi, Manager, Technical Operations, Australian Federal Police •....•.•...... 15

LUCAS, Sergeant Karen Margaret, Australian Federal Police Representative, National Emergency Communications Working Group ••.•.•••..••••.....•..•.•....•...•..•....•.......•........•........•..••.••..•......••.......... 9

LUTTRELL, Mr Denis Raymond, Chairman, National Emergency Communications Working Group, and Director, Information Management, Queensland Police Service ........................................... ... 9

MAHONEY, Assistant Commissioner Reginald, National Emergency Communications Working Group .................................................................................................................................................................. 9

McDONALD, Mr Geoffrey, Assistant Secretary, Security Law Branch, Attorney-General's Department ....•..••••••••••..••••••••...•...•.••.....•.•.•.••.••••.••....•.•......••.•••.•.....••.•...••.••.••••...•••............•.•.••••••••..•....•..•..•..... 15

MURPHY, Mr Cameron, President, New South Wales Council for Civil Liberties •.•...............••....•.••...•... 6

NEGUS, Federal Agent Tony, Acting Deputy Commissioner, Australian Federal Police .•.....•....•........... 15

SELLICK, Ms Suesan Maree, Principal Legal Officer, Security Law Branch, Attorney-General's Department •.•.......•.•••.......•.••.•.••..•.•.......•..••..•..••.•...•...•..........•..••...•..•......••••..........•..............•..•..•..•..••..•••....... : .. 15

THOMAS, Mr Donovan Harry, Team Member, Compliance and Technical Services Team, Communications Operations and Service Group, Australian Comunications Authority ........•...••........... l5

NORTH, Mr John, President, Law Council of Australia ..•.•......••......•.......•...•.............•..........••....•••...•...••.•... I

WEBB, Mr Peter, Secretary-General, Law Council of Australia ................................................................. I

WHO WELL, Mr Peter Jon, Manager, Legislation Program, Australian Federal Police ..•.•.......••..•...••... 15

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Wednesday, 15 June 2005 Senate-Legislation

Committee met at 5.30 pm

BAKER, Mr Sean, Lawyer, Law Council of Australia

NORTH, Mr John, President, Law Council of Australia

WEBB, Mr Peter, Secretary-General, Law Council of Australia

L&C I

ACTING CHAIR (Senator Scullion)--This is the hearing for the Senate Legal and Constitutional Legislation Committee's inquiry into the Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill2005

The inquiry was referred to the committee by the Senate on II May 2005 for report by report 14 June 2005. On 14 June 2005 the Senate agreed to extend the reporting date to 17 June 2005. The bill proposes to amend the Criminal Code Act 1995 to extend the defences to certain offences under part I 0.6 of the Criminal Code Act to all agencies who may exercise power under the Telecommunications (Interception) Act 1979.

The bill also proposes to amend the Telecommunications (Interception) Act to, amongst other things, allow the interception without warrant of communications to and from certain declared emergency service facilities. The committee has received 10 submissions for this inquiry, all of which have been authorised for publication and are available on the committee web site.

Witnesses are reminded of the notes they have received relating to parliamentary privilege and to the protection of official witnesses. Further copies are available from the secretariat. Witnesses are also reminded that the giving of false or misleading evidence to the committee may constitute contempt of the Senate. The committee prefers all evidence to be given in public but under the Senate's resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. I would also ask the witnesses to remain behind for a few minutes at the conclusion of their evidence in case Hansard staff need to clarifY any terms of references.

I now welcome Mr Peter Webb, Mr John North and Mr Sean Baker from the Law Council of Australia. You have lodged submission No. 5 with the committee. Do you wish to make any amendments or alterations to that submission?

Mr North-No, thank you. ACTING CHAIR-I now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.

Mr North-Mr Chair, Senators, thank you for inviting the Law Council of Australia to speak with you this afternoon. I would just like to take a few moments to outline the concerns of the Law Council and to amplify some of the matters that we have commented on in our submission. Before starting, I note the submission of the New South Wales Council for Civil Liberties. The Law Council agrees with many of their recommendations and commends them to you. The Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill is, in many respects, when you first look at it, an innocuous bill. It purports to make only minor changes to the telecommunications interception regime, and in many ways this may be correct. However, the bill contains several concerning elements that we believe should be amended or clarified.

The bill, in our view-and this is something we would like to stress-is simply one in a long list of bills brought before this parliament to increase the powers of law enforcement agencies, often at the expense of individual community members' rights and liberties. This was illustrated starkly for me last week when I spoke before a joint parliamentary committee looking into the questioning and detention powers that were set up to look at the sunset clause placed on those questioning and detention powers. It seems clear from talking to that committee that these powers may well continue in some form beyond the current sunset clause, and it may even be that the powers are restated without a further sunset clause.

At the time that this legislation was introduced, the Law Council expressed concern that it would not only mean individuals could be detained for excessive periods but it would also allow people to be detained even when they were not suspected of any criminal behaviour. Despite the fact that so far these laws have not been abused-in fact, there have been only eight instances where people have been arrested pursuant to those warrants-it leads us to our criticism of particular aspects of the present bill which is before you today, and that is that we have been unable to see any justification, in the setting out of the bills, for why law enforcement agencies require or need these expanded powers. It seems that the law enforcement agencies in this climate of

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fear have asked for and obtained from parliament very extensive powers, without anyone giving us concrete reasons as to why people's rights and liberties should be affected in this way.

We have not been given any statistics or examples as to why the powers need to be expanded, as they are in this act, and we have four particular matters that we bring to your attention that are set out in our submission, the first being the power to intercept communications from emergency service facilities, which includes mobile phones, as well as email in some instances. There appears to be no distinction made for personal calls being made to or from the facilities, or for the types of devices which can be intercepted.

The Law Council recommends that controls be placed on the types of communications and the instances in which these communications from a facility can be intercepted. There is no empirical justification given by those seeking these extra powers for what possible use can be made of listening in to these private conversations at these emergency service facilities.

The second point we talked about was the prescribing of emergency service facilities. This bill envisages that the Attorney-General can prescribe facilities and these will not be legislative instruments and therefore not open to your parliamentary scrutiny. This is justified by stating that these key facilities have locations that cannot be disclosed publicly. We believe that parliamentary scrutiny of these extra powers is absolutely essential and that it can be achieved by bringing it under the Legislative Instruments Act and therefore within proper parliamentary scrutiny, and a provision to remove information as to location can be easily implemented.

The third point is the power to regulate members of other agencies as law enforcement officers. This power is ill defined. 'Agency' is not specified in the Criminal Code Act 1995. A clearer distinction should be made as to what bodies could come under the regulatory power to make their employees, and possibly even contractors or agents, law enforcement officers for the purposes of this act. The council recommends that this regulatory power be amended to clearly specify which agencies can be prescribed.

The fmal point is the creation, we see, of a new offence for the purposes of intercepting the telecommunications of a person who has received or assisted someone who has committed a class 1 crime. The granting of a warrant for this offence is, in a sense, based on an assumption of the first crime, which then leads to this secondary crime. The fact that the person receiving or assisting must know that the other person is guilty of a class 1 crime is unprovable at the time of interception. This was one of the points we were making about the ASIO legislation that allowed people who had not committed a crime or even been properly suspected of having committed a crime to be arrested and held for periods of up to one week. It is when you add these bills, one on top of the other, that you begin to see the true infringement of our rights as citizens in a democratic nation.

I would recommend that this fourth matter, namely this offence, be removed from the bill. No evidence has been provided, that we can see, that this is necessary or that it will result in more convictions and therefore a safer country, and we do not see why we should reduce such individual liberties. We would be happy to answer any questions, thank you, Senators.

ACTING CHAIR-Thank you, Mr North.

Senator LUDWIG-I am interested in examining the issue of the people within the emergency facility. It seems to me that it is open that the exclusion would apply to personal communications-to both personal mobiles and emails-and, assuming there is some sort of control in terms of how internally they might regulate, there would still be personal traffic.

It would also cover non-emergency numbers if there were administration numbers within the establishment. There does not seem to be any ability to cut down or reduce that number of exempted communications that then could be potentially intercepted and then no reason as to why you would include those in that. It seems logical, in some respects, for the emergency numbers but it seems illogical for outside of that unless they are used as part of the network or could be incorporated into the network. That would hardly extend to personal mobiles people bring in unless they are excluded from those. Is that your understanding of how it would operate?

Mr North-Yes, it is . I should put on the record that we believe that the emergency numbers should be and need to be reported because there have been instances where dire results have occurred when an emergency number has been telephoned and appropriate action has not been taken. I am reminded of a case in New South Wales where an emergency number was rung when a woman was attacked in her home, tied up and left. For some reason the emergency services broke down and she remained in that state for 14 days and eventually

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died. We agree that there is real need to listen in to communications in a proper and organised fashion but not to extend it, as this bill appears to do.

Senator LUDWIG--You raised the issue of how it should be then described. It seems that this provides for a process which is not transparent and is counter to the original Sherman report which provides a level of scrutiny, at least ofTI warrants, particularly named warrants, and other mechanisms to ensure the Ombudsman has a review. There are a couple of others and I will go to those in a second. I was more interested in trying to examine an alternative process that you might have considered. Whilst maintaining the import of the bill, in what manner could it be reported which would allow parliament to have some scrutiny of that whilst still maintaining the withholding of location specific details?

Mr North-First of all, parliament must maintain scrutiny of these prescribed emergency service facilities. Therefore, every single thing should fall under the Legislative Instruments Act but there is no need to say, when you are looking at the particular facility, where it actually is. There might be a proper form of scrutiny of each and every one of these that the Attorney-General so prescribes. Otherwise, we really are moving into an area where there is no parliamentary scrutiny of what the Attorney-General and the people that he delegates power to say are going to be the emergency service facilities. As I was saying before, we have a lot in the ASIO field where what we say are strong and excessive laws have only been used eight times. That was reliant upon Dennis Richardson, who was head of ASIO. Every time you bring in a bill like this it relies very much on the strength and integrity of the people who have this power.

Mr Baker-The details that go to parliament could have things such as a general area that the facility is operating under, or a description of what the facility does, without disclosing the specific location.

Senator LUDWIG--Or the emergency service provider.

Mr Baker-Yes. Senator LUDWIG--Then the subcontracted provider, if there is one.

Mr Baker-Yes. Senator LUDWIG--There may be a way of detailing without even providing an area. It could be by state.

Mr Baker-Yes, by state or region or something of that nature. Senator LUDWIG--Do you think that would be sufficient?

Mr Baker-Obviously there is a tension here between ensuring the security and integrity of the facility­ and a lot of these are very important base stations et cetera-and also making sure that parliament has an appropriate role in looking at that and looking at what the Attorney-General is prescribing. That tension can be dealt with under the legislation. At the moment it is not addressed at all. You could envisage drafting of a provision which would allow that to be dealt with using as much detail as possible but also protect the location

of the facility. Senator LUDWIG--Could you comment on this. Given that we now have a new Legislative Instruments Act, you would at least expect a bit better effort to ensure that you can come within it, rather than seek blanket exemption from it at first instance. Given that we have now moved to a new regime for legislative instruments, it would seem that you would at least make an attempt. Would you agree with that?

Mr Baker-! would agree with that. The Legislative Instruments Act has been specifically drafted to address issues like this. There is a capacity under its provisions to allow this kind of tension to be dealt with. It does allow greater public scrutiny of legislative instruments but that is a good thing.

Senator LUDWIG--There were two recommendations made by the Sherman report which dealt with TI legislation. They are recommendation Nos 5 and 6. I could not see anything about them in your submission, so I wonder if you could comment on them. I am happy for you to take them on notice. One is whether the TI Act should be amended to require the public version of ASIO's annual report to contain the total number of TI warrants and named person warrants applied for, refused and issued. That would at least provide for better reporting. As you can appreciate, the named person warrants are a later addition but the reporting seems to be not as good as it could be.

The second recommendation is whether there should be legislative amendment to implement recommendation No. 6 of the Sherman report and require the Commonwealth Ombudsman annual report to parliament to contain details of inspections of the AFP and ACC conducted during the year, particularly of deficiencies revealed and remedial action taken or proposed. Those two may go some way in addressing in

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part the scrutiny of this type of power that is proposed, but not perhaps to all the other issues. You may want to take that on notice but we do have a very short timetable. If you are able to, you can provide a comment.

Mr North--One of our criticisms has been that there is no evidence to back up why this request has been made, either by government or by law enforcement agencies, for these extended powers. You have just said there would be an absolutely necessary check to see how many of these interception warrants et cetera are being issued each year. If you look at the Civil Liberties paper, you will see that they say there is quite an extraordinary number when you compare Australia with somewhere like the United States. Working in the criminal law field, we are seeing ever-increasing loads of interceptions in many different criminal matters. One of the cases I have at the moment has 16,000 pages of telephone intercepts. We are not seeing a proper increase in terms of either convictions or in what we would all be hoping to achieve, which is a drop in the crime rate. We do need that, but we might take both points on notice and give you a slightly better response. What is your time limit? You said it was quite tight.

Senator LUDWIG--Therein lies the problem. Unfortunately, we were meant to have this about a week ago. Your overview touches on some of those matters, but I was interested in perhaps a more targeted view.

Mr North-It is absolutely essential that there be this type of scrutiny, otherwise we are departing from things that we have held dear in a democratic nation without any proper evidence for it.

ACTING CHAIR-Mr North, I think that it is reasonable to accept until midday tomorrow. It will be cutting it fine, but we would be happy to accept any questions on notice or further submission by midday tomorrow.

Mr North-Thank you. Senator LUDWIG--The other area, before I move on, was the civil forfeiture orders. I know there are some differing views amongst the submitters about this. Your view, as I understand it, is that it conforms with the Sherman report and is a reasonable extension of the power. Is that a fair summary, if I put the caveat on it that it is subject, of course, to your four main points?

Mr North-Yes. Senator MASON-Mr North, you alluded briefly to the lack of empirical evidence. I will speak in general terms if I can. Could you argue that the Telecommunications (Interception) Act is over 25 years old, that the technology has changed a lot, that the threat has changed a lot with the war on terror, that law enforcement procedures have changed a lot and that, in a sense, this is simply not so much an infringement on civil liberties but, in a way, making the act more contemporary and more utilitarian? What do you say to that?

Mr North-You could argue that, but the very purpose of the act is now being whittled away by these constant changes. The purpose of the act was to stop communications interception, except for very good reason and in a very narrow band. What we are saying is that there is a distinct lack of evidence that current law enforcement procedures, techniques, surveillance and everything else working within the act is going to achieve a clear-up of crimes without needing to infringe on people's rights and liberties by moving in such a wide way.

Although we have only identified a number of things, because this is a small piece of legislation, what we are seeing from parliament increasingly since 2001 is bill after bill that whittles away at these points, so we keep standing up and saying this and getting shot down, but we believe implicitly that you really should show the Australian people why the law enforcement agencies need to have to these expanded powers.

Senator MASON-So the onus of proof is very much on them.

Mr North-Yes. Senator MASON-And you cannot argue that they are doing this, in a sense, as a matter of insurance or security. You would say that they have to prove it beyond a reasonable doubt, in effect.

Mr North-Yes. They should prove it, because they have become more sophisticated. The law enforcement agencies have moved with the times. They are relying a lot more on forensic evidence and on interception type evidence to solve a lot of serious, complicated crimes. We are just asking why they need to expand it so that the powers are being given to ever-wider groups of people without scrutiny by you, as senators of the Australian parliament, and for the reasons set out in our report. Utility does not work with us. We have fought too long and too hard to live in a country that we like so much without saying, 'Well, it makes things a bit easier for the law enforcement agencies.' That does not go down well.

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Senator MASON-Is it the tyranny of incrementalism?

Mr North-That is right. Although we have only picked four or five points for you today, we have tried to make the point that it ties in with all the other legislation.

Senator MASON-I understand that. Thank you.

ACTING CHAIR-Thank you, Mr North, Mr Webb and Mr Baker.

Proceedings suspended from 5.56 pm to 6.06 pm

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BIBBY, Dr Richard Martin, Committee Member, New South Wales Council for Civil Liberties

MURPHY, Mr Cameron, President, New South Wales Council for Civil Liberties

ACTING CHAIR-Thank you. You have lodged submission No. 8 with the committee. Do you wish to make any amendments or alterations to that submission?

Mr Murphy-Not at this stage.

ACTING CHAIR-I now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to answer questions. I also advise you, as you are on teleconference and it may not be evident to you, as the Senate is sitting tonight, witnesses should be aware that the committee may need to adjourn for a short period of time to respond to a division if necessary. I now invite you to make a short opening statement.

Mr Murphy-! would like to take the opportunity to thank the committee for giving us this opportunity to provide evidence on the bill. I will just say that the bill generally should be rejected or amended. It provides a severe reduction in the privacy of individuals without establishing good reasons for the interference with that privacy. It provides a massive increase in the scope of telecommunications interceptions.

It fails to adequately safeguard those increased powers and it does not adequately implement the reporting recommendations of the Sherman report, particularly in relation to ASIO interceptions. It allows the use of interceptions to assist in the seizure of assets which may be the proceeds of crime. In this sense, it is allowing a powerful criminal tool to be used to gain evidence that will ultimately be available in proceedings with a civil burden of proof. That is the general problem with the bill. I will hand over to my colleague Martin Bibby who will elaborate slightly on those points.

Dr Bibby-The prime purpose of the basic act is to outlaw interceptions of telecommunications, not to create a large class of permitted interceptions. The original Telecommunications (Interception) Act permitted interceptions on very few grounds but there are now many. There has also been an increase in the bodies that are permitted to conduct surveillance. This bill proposes not only to extend further the grounds for interception and to increase the bodies that may intercept, but in three of its clauses, it removes the power of parliament to control what further exceptions can be made. There is a slippery slope at work here and it is time for the parliament to draw a line.

Mr Murphy-That is all we would like to say in our opening statements. ACTING CHAIR-Thank you.

Senator KIRK-Thank you, gentlemen, for your submissions. I wondered if you could perhaps expand a bit on some of the points that you made. I am interested in particular in the point you make about these amendments being contrary to the overall purpose of the act or at least the initial intention of the act. Perhaps you could explain for us why it is that you see that as problematic.

Mr Murphy--Certainly. In answer to that question, the original purpose of the act was clearly to confine or limit the scope of telecommunications interceptions. When someone intercepts a telecommunications phone line, a computer line or other device it affects the personal privacy of users of that service. Many people may use a phone. While law enforcement may intercept a telecommunications line for legitimate purposes to obtain evidence about that individual, they are also invading the privacy of the many other users of that telephone line or computer.

The problem with this bill is that it greatly enlarges the scope for law enforcement authorities to obtain interception warrants. It provides a number of ancillary purposes for which they can be obtained-for proceedings which generally are not criminal in their nature, such as the seizure of assets that are proceeds of crime, for example.

Senator KIRK-Are you able to comment on some of the definitions that changed in the bill, in particular the definition of 'law enforcement officer'? Perhaps you could let us know what your views are about the expansion of that definition.

Mr Murphy-Yes. The definitions in the bill, as I understand it, changed to broaden the defmition of a law enforcement officer. What the bill does is include a number of additional agencies that will be able to act to intercept communications. The primary problem with that section of the bill is that it allows people to intercept communications or to use communication services to transmit or intercept child p*rnography. While that in

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itself is desirable, the structure of the bill will allow investigative officers to use this legitimate goal as an excuse to trawl through people's computers generally. It is undesirable, I think, for officers to be promoting and distributing child p*rnography in some attempt to snare offenders.

One only has to look at the findings reported in the New South Wales Ombudsman's report into the misuse of police email to look at the way in which that can go wrong. The defmition of 'law enforcement officer' is expanded so that other officers who intercept telecommunications may be covered, as is the marmer in which they are protected, and they have a general defence if they believe they are acting legitimately in their interception.

Senator KIRK-Would some of the problems you have highlighted be overcome if the legislation were amended so as to specify more clearly the agencies that are intended to be caught-in other words, prescribing the agencies that the legislation will apply to?

Mr Murphy-! think that parliament needs to make very clear which agencies are able to access this. As I understand it, the bill will allow the government of the day, through the Attorney-General, by regulation, to allow other agencies to access these warrants. I think that it should be confmed. Parliament should determine who is able to access these warrants by specifying both the agencies that are able to access them and the class or type of officer who is able to access a warrant and use a warrant in those agencies.

Dr Bibby-There is a further concern that the range of offences that state bodies are able to investigate is determined by state acts and not acts of the Commonwealth so that what the bill does is put in the hands of the states the powers to effectively allow people to increase the types of crimes for which interceptions are permitted, so the federal parliament loses its power over the extent to which interceptions are permitted.

Senator KIRK-But if it were amended so that those agencies were specified, at least then it would provide for better clarity, surely, wouldn't it, than if it were just permitting the minister by regulation to regulate this? Would you agree?

Mr Murphy-! think that is right. But, along with that, the bill should also be amended to specify and define the types of crimes for which these interceptions can be used. If that is done, it may well overcome this problem.

Senator KIRK-From what I have seen there is no specification at all as to the types of crimes that can be intercepted under this legislation. Am I right?

Mr Murphy-Sorry, I missed that. Senator KIRK-Are you saying that it would be better if the types of crimes were specified? From my looking at it, there appears not to be any list of specific crimes or categories of crimes.

Mr Murphy-If there were some schedule that would provide the categories of crime, the types of crimes for which interceptions could be used, along with the agencies which could use them, that would assist in tightening up the application of the interception power and the warrants that can be obtained, and that would be desirable.

Senator KIRK-Can you expand on your views about the exemption for an emergency services facility and where you see the problems are in those provisions? Dr Bibby-At present there is a provision for emergency services to use specified telephone numbers and to record interchanges on those numbers. We do not object to that because obviously it is useful when somebody calls in who may not be entirely coherent. It is useful if what they say is recorded. But what is proposed is an unlimited expansion of that to all the telephone numbers, emails or anything else which may be used within an emergency service. It also allows the Attorney-General to specify which agencies will be involved and which premises will be involved without parliament having any oversight at all. The first interferes or allows the interference with the privacy of employees at emergency services and it allows the numbers to be used for interception more or less without limit. The second, as I say, removes the powers of parliament to keep track of what is going on and, indeed, removes the power of anybody to keep track of who is being allowed to conduct interceptions. We think the bill should be amended in the way that we propose to avoid those problems.

Mr Murphy-The essential problem with this is that the Attorney can declare any facility to be an emergency services facility. It is conceivable that, for example, an entire police station and all the telecommunications lines in and out of that police station could be declared. I think what the bill should do is clearly indicate that it is only an emergency services phone line that is used for that purpose and not for any other purpose.

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Senator KIRK-Would you also want to see it limited such that emails and other forms of communication are excluded?

Mr Murphy-Yes. It is not my experience that people will contact triple 0, for example, by text message or by email, so it is unclear whether this is going to have any benefit in that sense. I do not think people in an emergency go to the computer and send an email, or send a text message when they need assistance, and I think that this just enlarges the scope of interceptions and will make it easier for it to be misused. For example, if an entire police station is declared an emergency services centre, then any of those facilities coming in and out-email, text messages and so on-may be covered by this and misused.

Senator KIRK- The explanatory memorandum says that the subsection that we are referring to, 7(3A), is not a legislative instrument. Of course, if it were a legislative instrument then a different regime would be in place. Do you think that the problems that you have identified could be overcome if this were to be declared a legislative instrument?

Dr Bibby-No, only in part. It would at least keep track on things so that parliament and the people could find out what extensions were being given, but it still means that all the communications that take place within a facility would be subject to interception. It would not protect the privacy of employees of, say, the police station and it would still allow the misuse of the section for the setting up of communications with people, and then recording them, which have nothing to do with the emergency purposes for this clause.

Senator KIRK-Yes, I understand.

ACTING CHAIR-Thank you very much, Mr Murphy and Dr Bibby.

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[6.22 pm]

CORBY, Superintendent Michael, New South Wales Police

LUCAS, Sergeant Karen Margaret, Australian Federal Police Representative, National .Emergency Communications Working Group

LUTTRELL, Mr Denis Raymond, Chairman, National Emergency Communications Working Group, and Director, Information Management, Queensland Police Service MAHONEY, Assistant Commissioner Reginald, National Emergency Communications Working Group

ACTING CHAIR-I now welcome representatives from the National Emergency Communications Working Group to the table. Do you have any comments to make on the capacity in which you appear?

Supt Corboy-I am currently commander, public affairs. I was formerly with the communications branch for three years.

ACTING CHAIR-Thank you. You have lodged submission No. 1 with the committee. Do you wish to make any amendments or alterations to that statement?

Mr Luttrell--No. ACTING CHAIR-I now invite you to make a short opening statement, at the conclusion of which I will invite members from the committee to ask questions.

Mr Luttrell--Thank you very much for the opportunity to address the committee. The National Emergency Communications Working Group is a group consisting of senior representatives of emergency services organisations-police, fire and ambulance-within Australia. It includes Telstra, the Australian Communications Exchange, which is the referral party for hearing- and speech-impaired people, the Australian Communications Authority and Emergency Management Australia, all working towards improving the quality of the service that operates around the Emergency Call Service, which is triple 0, 112, 106 and those sorts of numbers that provide assistance to the public.

There are 13,500,000 of these calls made annually to the Emergency Call .Service. About 50 per cent of these calls are received by emergency services organisations and less than 10 per cent of them are genuine. Emergency services organisations communication centres exist to field calls from the public, directly or indirectly, as expeditiously as possible. Calls may be to the emergency call numbers, as I mentioned, or direct to ESOs and internally referred, although that does not happen often.

Real calls are time critical. Many can be life threatening. Communication centres are designated areas set up for the specific purpose to receive these calls and arrange for response action. As well as arrange for emergency services dispatch, it can involve a number of outgoing calls to other appropriate services, such as­ in the case of police, for example-to ambulance, fire, health departments, local council et cetera, and even back to the caller, if need be, depending upon the circ*mstances and the nature of the issue.

Ideally, all communications should be recorded in and out so that a complete record is available for inquiry or follow up. Recording tapes are subject to very close control. These tapes are often called for to establish what occurred. For example, in Queensland not so long ago a claim was made that an ambulance did not tum up in response to a sick child. We were able to establish in subsequent investigations that no calls were received, as claimed in media statements. The need for recording is associated with high levels of

accountability-internal or external investigations, coronia! investigations, broader evidentiary inquiries, subpoenas, royal commissions, media statements and reviews in respect of incident follow up .

During emergency calls, emotions are often running high. At difficult times, claims made are often just recollections. Sometimes the content of calls needs to be played back to operators during the event, to be clear about what is being said. Complaints from the public are an increasingly common event. There is often a high expectation from the public and the legal community that ESOs be able to account for their actions and the

level of service provided.

In an emergency, communications procedures are very closely controlled. Operators are trained for a considerable time before they are allowed to operate, which often involves a four- to six-week training period. Internal procedures and policies advise operators that recording is undertaken. They are advised that, if they wish to make a private call, they should go to a separate area, be that an administration area, rest or meal room, where calls are not recorded. The same is true for incoming calls. Operators are very aware and are

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reminded of recording occurring. The recent NECWG meeting of senior communications centre representatives affirmed that this is the case in all jurisdictions.

Calls to these areas are taken and made on fixed phone services on call taker and dispatch desks. NECWG confirmed that mobile calls come through the fixed network. That ensures that they get priority routing. Present legislation only allows recording without announcement of calls to specially designated call numbers and then only into such centres. Not all incoming calls requiring action are originally made to those numbers. No call out is presently allowed to be recorded without announcement. This makes it very difficult to conform with the legislation, because it makes procedures very difficult in what can be quite stressful circ*mstances.

Emergency services organisations fully support the legislative changes proposed, as they simplify procedures and provide for the complete recording of all activity. Procedures and policies operating in communication centres give full recognition of and capability for personal communications of ESO operators. New Zealand and the United Kingdom presently have a similar regime. Legislation and regulation permit it. Our understanding is that these operate very successfully. The proposed legislation meets all of the ESO concerns and provides suitable protection for the wider public interest, certainly as ESOs experience it. Thank you.

ACTING CHAIR-Thank you.

Senator LUDWIG-A couple of the submitters raised the issue of the need for this legislation. You have gone to some of those reasons. They are operational reasons, ifl could couch it in that way, and seem to be relevant to people in the course of their employment within emergency services and the like. Is that what you have responded to?

Mr Mahoney-That is part of it. In our recruitment processes we clearly set out in the job descriptions what the job is-working in an emergency call centre. They all know that calls are recorded. As Mr Luttrell said, there are very clear guidelines on where they can go if they want to make private calls. The essential nature of what we are talking about here, of course, is the increased accountability for all of us to be clear in regard to what is heard and what is not heard over the telephone lines. As Mr Luttrell indicated in the presentation, sometimes we replay all the time because of the people who ring us in an emergency, not only because of emotion and hysteria, but often they are also drug- and alcohol-affected. For a lot of the people calling triple 0 and the emergency lines, that is the case.

Since 9-11, our reflection as a national body is to look at how we can capture more information in our emergency centres. Because of the interdependency between emergency services centres now, we contact each other in a different way than we did before, particularly in response to critical incidents. We do not do that on emergency lines. We do it on lines attached to the communications centre. With the amendment we are trying to clarify what has changed operationally and also administratively in our response to critical incident management in Australia.

Senator LUDWIG-What do you envisage will be the lines that are captured by this legislation or that you require to be captured by this legislation?

Mr Mahoney-Incoming and external calls to the emergency call centre. Senator LUDWIG-And those which you just mentioned, the ones which are effectively an adjunct to­

Mr Mahoney-Yes, that is covered in the amendment. Senator LUDWIG-What about personal computers and emails, personal mobile phones and administrative phones that are not used or not designated as part of the network? Is it the intention to have those monitored as well? Mr Mahoney-No. As I indicated in the opening remarks, the telephone lines that are designated to people we employ in our centres are not recorded. Senator LUDWIG-I cannot recall that I have been into an emergency services facility, other than perhaps the fire brigade at some point, or a fire brigade control room. The type of place that you are outlining is like a call centre facility; there are lines which you can identify as incoming or outgoing, that you can then monitor, and those which you want exempt from the telecommunication legislation. Am I right about that?

Mr Mahoney-That is part of it. Also there is dispatch, where you have a telephony support person who is getting phone calls from police stations and phone calls from members of the public put through by other agencies to provide a more timely response to critical incidents. There is a whole range of telephones in there.

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With inquiries and investigations that occur as the nature of our business, we need to adequately ensure that it is not just what a person thought someone said; it is actually what someone said.

Senator LUDWIG--And then in terms of setting up a quick response, is there a facility where you then also want to check communications on CV or HF or other frequencies? Is that a facility that you have considered as part of this?

Mr Mahoney-You are talking about voice-over, IP and other new technologies coming on board? Senator LUDWIG--Yes .

Mr Maboney-1 am on the Premier of New South Wales ' task force on the channels and access strategy, but all around the nation we are encouraging members of the public to communicate with govermnent. A Jot of that is SMS and through digital means. All the teenage population I think are accessing their exam results by SMS rather than looking in the papers.

Senator LUDWIG--Yes.

Mr Mahoney-We are trying, as an emergency services facility, to ensure that the legislation will cover both current technology and emerging technology on a day to day basis. We are already taking reports of matters over the internet and through emails in regard to specific crimes. We are linking with other govermnent departments about major crimes in schools, to better share information, get more timely lists of what has been stolen, and any possible modus operandi of offenders.

Senator LUDWIG--Do you have dedicated computers or computer terminals with particular IP addresses that you use for that facility? You can use mobile phones or access telecommunications through the internet for SMS as well for that type of traffic.

Supt Corboy-No, not at this stage. Senator LUDWIG--It is only calls that you have at this point in time?

Mr Luttrell-The recording is essentially in the communications centres. The equipment there is provided for that purpose, so what comes into that centre is what is recorded. It is invariably limited to that sort of room, but the way technology is developing, there is increasing pressure on us to take SMS calls. We prefer not to do that at the moment, mainly because of the reliability of the service. We do not want to push people into SMS if there is no guarantee that that call is going to get through.

Senator LUDWIG--Sometimes, as you can appreciate, it can take two days to get an SMS. Mr Luttrell--Indeed. In fact, we advise against it but I think the reality is that that sort of technology is going to improve. What the bill provides for is that capacity to do it if and when it gets to a point that we would be comfortable with it.

Senator LUDWIG--Some of the submitters also say, in terms of the definition of who is in and who is out, there does not appear to be a clear line between those lines which are covered and those lines which are not covered, including mobile phones and-Mr Luttrell-It is not so much the lines; it is the facility which is actually taking the calls and dealing with

the calls.

Senator LUDWIG--If you had a personal mobile phone inside the facility, that would then be captured by the legislation?

Mr Luttrell-No. Senator LUDWIG--How would it not be? Mr Luttrell-Because it is not linked to that network. Sgt Lucas-None of us currently have the facility to intercept mobile phone calls in the air and it is not something that we are looking at instigating.

Senator LUDWIG--No, but you can go to the ISP with a telecommunications interception warrant or an exemption, as the case may be, and obtain the communication. It is not about intercepting it in the air; it is about intercepting it at the communications carrier.

Mr Luttrell-We are talking about recording, without announcement, the normal routine calls that are coming through. In the same way as this is being recorded, if your mobile went off now, it is not recorded as part of this facility. It works exactly the same way.

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Senator LUDWIG-How would it not be covered?

Mr Luttrell-It is not connected to that mechanism and therefore-Senator LUDWIG-Where does the legislation say that it has to be connected to your network?

Mr Luttrell-It does not, in that sense, but that is not what happens. That is the point I am making.

Senator LUDWIG-Unfortunately, I have only got the legislation to go on. I do not know what you do other than the submissions that I have received in terms of operations. How do you rule out the telecommunications interception warrant being excluded from a mobile phone or a computer email or an SMS from within that facility, be it personal or even from the tearoom, or from a line which is not part of the network as such? In other words, a phone in the tearoom for personal use would be covered, as I read it.

Mr Mahoney-! think I could talk for my colleagues there: (1), once you walk into the communication facility with a dispatch, you cannot have a mobile telephone on. That is the instruction to employees in regard to those facilities; (2), as indicated in the submission, the only mobile phones that are recorded are the ones that come through and then go onto the fixed line for us, which are recorded. The other question is in regard to the designation of the facility, which I think was raised previously about the numbers of police stations which would appear in the schedule. We have had to nominate what an emergency service facility is, and that is where our emergency centre is located in each of our states and territories for the point of this legislation.

Supt Corboy-I think you were describing the nature of the call rather than the technological aspects of the call.

ACTING CHAIR-Just to get this clear, you do have the capacity to prescribe a discrete area of a building or area. I think in some of the submissions there was an assumption that there was quite a large area or building simply to be prescribed, hence the normal activities that would take place outside of the needs of an emergency call centre would not be able to take place. Can you give me some assurances that the prescribed area will also have the capacity to be controlled in terms of being able to be easily identified by the occupants and the staff of that area?

Mr Luttrell-Invariably it is an area that is secured and people just do not walk in and out. It requires particular access and egress.

ACTING CHAIR-Mr Luttrell, can you give me an example of the sorts of security measures you would have to go through to get in there? Is there some sort of identification pass?

Mr Luttrell-Could I ask Sergeant Lucas to describe what she does in the AFP. Sgt Lucas-At our centre, the Winchester Police Centre, ACT Communications, to get into the building you come through the front door, where there is a guard; you are required to be signed in if you are not a member. Even as a member, you come in through that main door and you go down a corridor to a first entry door. You buzz, say who you are and why you are there. That is assessed by the communications sergeant. If he believes that you should be coming through that door, he lets you in. You walk down the corridor to a second door and that is the door into the facility itself.

ACTING CHAIR-There can be no mistake when you are inside that facility­

Sgt Lucas-You are coming into a secure area.

ACTING CHAIR-that the mobile phone in your pocket might not be protected by the normal mechanisms. Perhaps you could just give us a quick brief on specifically how you ensure that everybody who works within that facility or adjacent to that facility understands the nature of the calls that are made from within the facility itself, and the difference between the nature of those calls and calls that will be made in other areas of the building, rather than the facility.

Sgt Lucas-In our centre, members of communications have six weeks training when they first come in. One of the first things they are told is that all their phone calls, apart from those in the designated area like the meal room, will be recorded, and it is recorded for their benefit as well as for the benefit of the caller. The other members outside the communications centre who are contacting us backwards and forwards are also aware that all the calls are being recorded. It is common knowledge.

ACTING CHAIR-I can understand how that may be in the facility you describe, Ms Lucas, but there are a number of other facilities-for example, a fire station-that may not be used to the level of security amenity that you would be used to.

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Sgt Lucas-1 do not know about the other states, but I know that in the communications centre at Curtin Emergency Services Authority in the ACT again you have several levels of security to go through to get into their communications centre which handles fire and ambulance for the ACT.

Supt Corboy-Both the New South Wales Fire Brigades and the New South Wales Ambulance Service have equal levels of security in their comms centres to us. They are not seeking any telephony into their fire stations or ambulance stations, which are not public numbers anyway.

Mr Luttrell-Senator, it is not reasonable to describe these locations as fire stations. They really are emergency communications centres.

ACTING CHAIR-I am just dealing with the perceptions in some of the submissions.

Senator KIRK-We have just been talking about various facilities, the ones that obviously come to mind like fire, police et cetera, but my understanding under this legislation is that the definition of such a facility is going to be broadened considerably by the declaration of the minister, so whereas what you have said is quite reassuring as regards security, how can we be sure that these other facilities that this is going to extend to will have the same kind of security in place? You can see our concerns.

Mr Luttrell-I am not aware that that extension is anticipated in that sense. Each emergency service would be required to identifY the location of their devices and those centres. I do not see any broadening of the issue, with respect, from the way it presently operates.

Senator LUDWIG-Do you have a manual that covers contracted-out call centres? Do you have contracted­ out call centres or are they all dealt with by emergency services personnel?

Mr Luttrell--Contractors in the sense of? Senator LUDWIG-The phone, receiving the phone calls and passing them on. Mr Luttrell-No, they are invariably either sworn officers or members of the service, all covered by the rules and regulations that operate in those services. Contractors in the sense of telecommunications technicians and people who might come in to repair things?

Senator LUDWIG-No, I mean in terms of calls. Mr Luttrell--There are no contracted call centres in Australia, none at all. Senator LUDWIG-At the moment. Is there any intention to have them? Mr Mahoney-! have not heard anything. Mr Luttrell-! am aware of none. It certainly does not apply in any of the facilities in Queensland. Senator LUDWIG-So all the facilities we are talking are all either uniformed or within a service?

Mr Luttrell-Yes. ACTING CHAIR-Mr Luttrell, in your opening comments you made reference to a group that you consulted with that were voice challenged in some form. Perhaps you could think about that. In reference to Mr Murphy's submission when he said you do not usually use email or SMS messages to call an emergency centre, was that in reference to the potential for using SMSs to try to get in? Could you perhaps enlarge on why that was the case?

Mr Luttrell-We push the triple 0 number very hard. In fact, we prefer to have only one channel that is well known, reliable, the number that comes to mind when you have an emergency. We accept that technology is changing things. The difficulty is if you get an email and it is clear what it is about, then it has to be investigated. We have no option but to do that. So that message has to get into the facility. It is not one we would anticipate, it is not one we would encourage. SMS is one such thing, exactly the same case. The Australian Communications Authority has issued an edict to discourage carriers and carriage service providers from talking about SMS in respect of emergency calls.

ACTING CHAIR-But because it is a possibility that people may use that amenity to contact an emergency centre, that is why it is being included in the purview of this, for information.

Mr Luttrell-Essentially, yes. We just do not know whether the technology is going, frankly. Sgt Lucas-It has taken us three years to get to this point. Technology is changing so quickly these days that we do not want to be back to see you next year and the year after and the year after because technology is getting ahead of us.

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Senator LUDWIG-It is highly likely you will be. This is about the fourth time we have the telecommunications interception legislation before us, so do not be disappointed if you are wrong.

ACTING CHAIR-Thank you very much for providing evidence today.

Sgt Lucas-Thank you, sir.

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[6.47 pm]

GEORGE, Mr Anthony, Manager, Compliance and Technical Services, Communications Operations and Service Group, Australian Communications Authority

THOMAS, Mr Donovan Harry, Team Member, Compliance and Technical Services Team, Communications Operations and Service Group, Australian Comunications Authority

LAMMERS, Federal Agent Rudi, Manager, Technical Operations, Australian Federal Police

NEGUS, Federal Agent Tony, Acting Deputy Commissioner, Australian Federal Police

WHO WELL, Mr Peter Jon, Manager, Legislation Program, Australian Federal Police GIFFORD, Mr Cameron, Senior Legal Officer, Security Law Branch, Attorney-General's Department

McDONALD, Mr Geoffrey, Assistant Secretary, Security Law Branch, Attorney-General's Department

SELLICK, Ms Suesan Maree, Principal Legal Officer, Security Law Branch, Attorney-General's Department

ACTING CHAIR-The Australian Federal Police and the Australian Communications Authority have lodged submissions Nos 7 and 3 respectively with the committee. Do you wish to make any amendments or alterations to these submissions?

Mr George--Not for the ACA. ACTING CHAIR-Before we commence, can I remind senators that under the Senate procedures for the protection of witnesses, departmental representatives should not be asked for opinions or matters of policy. If necessary they must also be given the opportunity to refer these matters to the appropriate ministers. I now invite each of you to make a short opening statement, at the conclusion of which I invite members of the committee to ask questions.

Mr McDonald-Thank you. Those involved in organised crime activity and those who are most likely to subvert national security need to be able to communicate in order to get done what they want to do. Like any business of this nature, they like to use sophisticated techniques when it suits them and sometimes believe that communications are quite safe and foolproof; but every once in a while with these communications they make mistakes and give the game away. That is where telecommunication interception becomes a very effective tool in the fight against crime and enhancement of national security. Our current regime recognises that there is a need to guard against infringements of personal privacy in this process. That is why we have a strict

accountability regime. We have warrants which are used as a last resort and there is extensive oversight by the parliament and the Ombudsman.

I mention all this because it is important when we look at these amendments that we do not just look ·at the specific amendment but think about what we are amending and the framework that is in place which provides for accountability. These amendments are in many ways a refinement of the legislation and do not have the significance of the framework that we are attaching them to. ·

It is important that when we have legislation like this, it does not impede the operations oflaw enforcement agencies, particularly emergency services and the Australian Communications Authority work. These services amendments are very much about assisting Jaw enforcement and ensuring that we can provide adequate emergency services coverage. There is another amendment, which is essentially a fix-up amendment to the Criminal Code, which is totally unrelated to telecommunications interception but we found it convenient to use this bill as a vehicle. You might recall last year when I was in the criminal law branch we put through some updated telecommunication offences. Some of those offences were to do with the use of child

p*rnography on the net and issues like that.

In that legislation there were exemptions for law enforcement agencies. There were some agencies which we should have exempted. Although we had consultation on the bill, these agencies were not specified, so that amendment is included in this bill and is a Criminal Code amendment. It is to do with allowing lawful law enforcement related activity.

The committee has indicated it is particularly interested in the proposed amendments that will enable interception of communications made to and from the declared emergency service facilities. Currently, listening to or recording calls made on an emergency service number is not to be an interception for the purposes of the interception act. Such numbers are those on which assistance in emergencies may be sought

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from the police, fire or ambulance services. The primary emergency service number, triple 0, and the mobile and teletype equivalents, 112 and 106, have been designated in the regulations for this purpose.

It was intended that the list of prescribed numbers could be extended to accommodate the needs of emergency service organisations. However, state and territory ministers have indicated that the prescriptions mechanism is not practical in the following ways. The exception only allowed recording of incoming calls, not those calls subsequently made by emergency services organisations that deliver emergency services. Obviously there is an incoming call and there is a delivery side. The prescription method was also proven to be administratively cumbersome as it required identification of potentially thousands of numbers at which emergency assistance calls are received within communications centres. It would therefore require endless regulatory amendments.

Finally, the publication of emergency service numbers presents a significant threat to this very important part of our critical infrastructure. The numbers could be used in a malicious manner to shut down a communications centre by engaging all the lines in a centre simultaneously.

We only have to look at how this city has been disrupted over the last few weeks to see how there are more than enough people around who might be motivated to do this, let alone those who might have something else more serious in mind. Clearly, we do not want to be facilitating any problems of that nature.

In response to these concerns the amendments will move away from prescribing emergency service numbers and move to the concept of declaring emergency service facilities, therefore allowing the interception of communications made to and from those facilities. This will enable the interception of all forms of communication, including email and text messages. While communication is usually in the form of voice calls, it is essential that the act remain technologically neutral and recognise just how much text communication is used. Recently we texted the wording of some proposed amendments on a phone because we could not contact anyone except in that way. Text messaging is getting to the point where-Senator LUDWIG-Another island in paradise.

Mr McDonald-It was Cambodia. It is very well served with mobile phone service. It shows just how strongly that is used. Obviously it can be used in that way, particularly with younger people using it all the time. Sure, it will enable the interception of private communications. We have a situation here where professional people are running the emergency services line and they are fully aware that they are private calls. Of course there is awareness that in these circ*mstances it will be recorded. However, the details of the facilities to be declared will be kept as tight as possible, even down to declaring a particular part of a particular floor, depending on the structure of the facility. Staff will be aware that in all other areas communications are not being intercepted. In law enforcement type of facilities there is quite strong control over the areas in which people can go.

Finally, it is also true that there are details of those facilities that we do not intend to make public. That is reflecting the need to protect our critical infrastructure. If the emergency services system cannot work because of sabotage, then the problems are potentially pretty horrible. I think I have already mentioned the Criminal Code amendment and explained the situation with it. From some of the submissions it seems that people are getting confused that these amendments are really about the interception regime. In fact that is not the case. It is focused on the telecommunication offences.

Those offences deal with everything including threatening to kill people, threatening to cause people harm, hoaxes, the child p*rn side of things which I mentioned earlier-all of which are issues where law enforcement needs to be investigating whether the organisation that we have listed clearly have some need to be involved in some of the activities. One was to do with mobile handsets and the rebirthing of those. Sometimes you might need to be involved in doing something like that to try and deal with people who are doing that sort of thing. In certain circ*mstances law enforcement agencies may be legitimately engaged in conduct that does fall foul of one of these offences. In the event that this involves surveillance, then the Surveillance Devices Act, which we had passed last year, would apply. It is quite strict in its procedures. The consequences of not complying with that act are not only that we will have admissibility problems but also there are sanctions underpinning it.

These amendments are, in the scheme of things, not earth-shattering. I would like to suggest that fundamental aspects of it are totally within the spirit of the foundation legislation which I outlined in the first place.

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There was some criticism that we were proposing to list additional bodies that might be created over time by regulations and there was some concern about that. Of course, if it is done by regulation- and there are many important things listed by regulation-then it can be disallowed in that situation if there is a problem. Clearly we have in mind that they are often reconstituting and renaming organisations or creating new ones and it is obviously much more practical to do it by regulation. Thank you for giving us an opportunity to appear here tonight. I look forward to any questions you might want to ask.

ACTING CHAIR-I am glad you are looking forward to questions, Mr McDonald. Mr McDonald-We always look forward to questions. Senator LUDWIG-In terms of the odd one out, which is the first one, it does not seem to be limited by the number you can include within the regulation you make. It seems to be open-ended in the number of agencies you could include by regulation. What was the purpose of making it open-ended?

Ms Sellick-As Mr McDonald just mentioned, these agencies we currently prescribe often have restructures. The Crime and Misconduct Commission in Queensland is the most recent one. By prescribing them in the primary legislation we immediately run the risk that once there is a change in the name of the body, the primary legislation no longer covers them. Yes, it is an open-ended regulation-making power, but must take into account any of the agencies that may be engaged in this conduct, those that are generally permitted under surveillance device legislation. Should a new body come on board, they would like to be able to give them the advantage of the defence that is available to other law enforcement officers.

Mr McDonald-In a sense it would require a recommendation of the relevant state government to the Attorney-General before we would be looking at listing these additional organisations.

Senator LUDWIG-When you look at the definition of 'emergency services facility' there is now no longer a requirement for the emergency services interception to occur in the course of a person's duties. That seems to have been removed. Why is that no longer necessary? Ms Sellick-That was an unintended drafting consequence. We thank the submissions that brought this to our attention. It is something the government certainly is going to be looking at. Senator LUDWIG-Does that mean you might have a favourable view to an amendment?

Ms Sellick-! carmot answer for what the government might do, Senator. Senator LUDWIG-So you say it is a drafting oversight and it should not have been deleted? Ms Sellick-There is a possibility that we should have stuck to the words in the legislation and not tried to be fancy and reinvent the wheel.

Senator LUDWIG-Do not tell parliamentary counsel that one. In terms of the definition of 'emergency services facility' it has the ability to include at (d) a service for dispatch of, or referring matters to the attention of a force . Is there any subcontract about emergency services facilities at the moment, or dispatching centres? Ms Sellick-Not that I am aware of. I am aware that in Victoria they did have a relay service at one point. Senator LUDWIG-The ambulance, wasn't it? It was subject to adverse press, ifl recollect correctly.

Ms Sellick-lt is something for the emergency services to address; whether they bring it back within the coverage of their own jurisdictions or whether they stick to a centre that takes all the calls. Telstra is at the moment the owner of the triple 0 calls. In fact, they are part of the services we would need to declare for the purposes of this provision. They are not police, ambulance or fire, but they are certainly the first point of contact for the triple 0 calls. Senator LUDWIG-There do not seem to be any others. Telstra then is the organisation that would be

included at the moment. Ms Sellick-Not that we are aware at this stage, but of course it is a fracturing market up there. Senator LUDWIG-It seems that (c) is to enable that force or service or another force or service to deal with a request for assistance in an emergency. Does that limit the stretch of (3AB)?

Ms Sellick-It certainly is not allowing the prescription ofany facility. It does have to be tied back to the fire , police or ambulance services. Senator LUDWIG-Is that also tied to deal with the request for assistance in an emergency? There are a number of elements to that: it is ' deal with' a request, so it has to be a request and then it has to be an assistance in an emergency.

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Ms Sellick-Yes.

Senator LUDWIG---They are words oflimitation. Ms Sellick-Yes.

Senator LUDWIG---So unless it was an emergency-

Wednesday, 15 June 2005

Ms Sellick-All calls coming in are going to be. The people who are intercepting the calls cannot declare at one particular moment or not whether a call is an emergency call, which is why we need to be able to intercept all calls coming into these facilities.

Mr McDonald-But it is a clearly marked emergency line. Ms Sellick-Yes.

Senator LUDWIG---But people make wrong calls.

Mr McDonald-It would be pretty hard to make a mistake with triple 0, though. Senator LUDWIG---You are braver than I to say that.

Mr McDonald-It is probably unlikely, I would say. Ms Sellick-Basically the Attorney must be satisfied that the facility, before he declares it, is a facility that will enable the force or service to deal with a request for assistance in an emergency. That is the reason the facility is established; to be able to deal with a request for assistance in an emergency. It might receive a call that is not, in hindsight, an emergency call but it has in fact been established to receive and deal with calls in an emergency.

Senator LUDWIG---So far as the retrospective operation of triple 0, 106 and 112 numbers, it seems that only goes back to March.

Ms Sellick-We have not sought retrospective commencement of these provisions. They will commence on royal assent.

Senator LUDWIG---Who would not be protected then? Was there any consideration as to whether retrospective protection should be given to workers in emergency facilities who may have listened to or recorded emergency calls or numbers other than triple 0, I 06 and 112?

Ms Sellick-It was something that came up very early. Because emergency services are professional organisations-we are not quite sure of the legal standing of it-we have formed a view that people should know when they call these services they are recorded, and certainly the people operating in the services know they are recorded. It probably is not an interception anyway, because everyone is aware that it will be recorded. It is a grey land again. We have certainly taken note of the submission that brought this to our attention.

Senator LUDWIG---The area of the recommendations by Mr Sherman under the TI Act, particularly 5 and 6, seems to be that there is no sufficient reporting to parliament in terms of the number ofT! warrants, named­ person warrants applied for, refused and issued during each reporting year in an annual report, or to parliament through ASIO's annual report or some other annual report, or through the TI reporting mechanism itself. That seems to be a recommendation Mr Sherman sees as a modest step towards greater disclosure and accountability. Why has that not been included in the legislation?

Ms Sellick-We have, Senator, in part 4, the provision dealing with civil forfeiture proceedings in named­ person warrants. We certainly pick up Mr Sherman's recommendation about the statistics the agencies are required to provide to the Attorney-General, for him to include in the annual report to parliament on named­ person warrants.

Senator LUDWIG---So you will be including those applied for, refused and issued during each reporting year. Ms Sellick-Yes. In fact, those statistics were included in the annual report for 2003-04.

Senator LUDWIG---In respect of recommendation 6, the Commonwealth Ombudsman's annual report to parliament contained details of inspections of the AFP and ACC during the year, particularly of deficiencies revealed and remedial action taken or proposed. Ms Sellick-Yes. Item 10 in part 4 gives effect to that recommendation. The provision will require the Ombudsman to include in the annual report to the Attorney-General a summary of the inspections, deficiencies and particulars of remedial action taken.

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Senator LUDWIG-Yes, but that is to the Attorney-General. Mine is to parliament.

Ms Sellick-lt is our intention that the Attorney-General will include in his annual report to parliament the statistics that will- . .

Senator LUDWIG-But he does not have to.

Ms Sellick-Not at this stage, no. We have made it clear in a supplementary explanatory memorandum that that was the intention, to give full" effect to the spirit ofMr Sherman's recommendation in this regard. There is an issue about the detail which the Ombudsman can include in his annual report. At the moment he is restricted in what he can, in fact, report in his annual report on TI information.

Senator LUDWIG-Why wouldn't you amend the legislation rather than put it in an EM which makes it inconsistent with the legislation, in my view?

Ms Sellick-We can certainly specify, if the government so wishes, that this is to be included in the annual report. My understanding is that it was the government's intention to give effect to Mr Sherman's recommendation No. 6.

Senator LUDWIG-In terms of the more general proposition raised by the Law Council about the ancillary offences-it seems that they regard them as a legislative creep--is there a justification that you can provide, or an example, of where that power would assist in prosecuting a particular case?

Ms Sellick-I might defer to my law enforcement agency friends, but I can say that in any situation where crimes are conducted it is only after the event that you are starting the process of identifying who the person is or where the person is. Nine times out of I 0, they are going to have some sort of assistance after the fact. It is going to be an essential tool for law enforcement agencies to be able to obtain an interception warrant for the investigation of an accessory after the fact to assist with the apprehension and investigation of the primary offender.

Mr McDonald-It is quite usual right through the legislation to cover the ancillary offences. Obviously, they go hand in glove with each other.

Federal Agent Negus-Obviously, these are class· I offences and very serious offences, like murder, kidnapping and terrorism. Certainly, from the AFP's perspective, if there was an accessory after the fact it would be something of an inhibitor if we were unable to apply for a proper telephone interception warrant in that circ*mstance. It is a shortfall in the current environment and, as I said, only for very serious offences.

Mr McDonald-The other point is that the penalties for ancillary offences are quite significant. They are serious penalties. Ms Sellick-They are not secondary offences, they are offences in their own right.

Senator LUDWIG-What is your answer, though, to the claim that they can be abused to intercept and record communications of a person who is only suspected of aiding and abetting after the fact and would cause a breach of privacy? This was an issue raised by the council. Mr McDonald-Ancillary offences contain their own fault elements; contain elements of a serious offence in their right. It is an area of criminality that has been identified by the parliament anyway. It is not really correct to say that they are of no substance. If the parliament decides that ancillary conduct is to be criminal and prescribes a significant penalty, then it should be treated like other offences.

Senator LUDWIG-But only in relation to class I offences. Ms Sellick-Yes. We have not extended the defmition of ' ancillary offence' for class 2 offences. This is only for class I offences. Federal Agent Negus--The same checks and balances exist for the ancillary offences as exist for the primary offences, so there is still a very rigorous regime: the issuing of the warrant, the sufficient standard of proof being met at that particular time and then the regulation around that of how the documents and other things are handled as a consequence. Senator LUDWIG-So you are not going to come back to class 2 offences for the application of ancillary

offences in the foreseeable future? Ms Sellick-Senator, if I had a crystal ball in relation to the Telecommunications (Interception) Act and amendments that were required--Senator LUDWIG-We would not be here for the fourth or fifth time, would we?

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Ms Sellick-The year is but young!

Senator LUDWIG-There is a review as well going on in relation to this legislation. Can you tell me where that is up to?

Mr McDonald-The review has engaged around quite extensive consultation. There have been written submissions and also Mr Blunn has visited many different organisations and locations in a consultative capacity. They are at the point where they are writing aspects of the report and developing the report. That is going along fairly well, and I expect that the review is still pretty well on track for August.

Senator LUDWIG-The extension to where it can cover emails, SMSs and information not connected with emergencies: it seems to be that the legislative reach of this is-and we have had a couple of examples provided to us-stretches to where you have a computer within the facility and it might have private ernails. I do not know. People cannot always say who is going to send them an email. Then you have mobile phones that people may have, for a range of reasons. Although you say it may not exist now, if you couple it with a service or with a dispatch and they then are contracted out into the future--because this legislation seems to also have a future content to cover a range of circ*mstances that may not exist now-you have those covered as well, which could include private conversations and private communications.

Ms Sellick-The intention is to cover anything occurring within the facility. It is not limited to particular forms of communication or particular styles of communication. I think the National Emergency Communications Working Group has addressed the issue of the need to ensure that the legislation moves forward should there be a change in the way people comrilunicate. It is not looking at designated numbers. That became too prohibitive in the way that we could prescribe them. It is looking at changing the focus to being what is actually in the emergency service facility.

Mr McDonald-People working in a facility will be very much aware of the circ*mstances of their particular workplace. They will no doubt have some faith in their colleagues to the effect that they probably will not be too concerned about that issue anyway.

Federal Agent Negus-My experience over 23-odd years now is that people who work in those areas understand the environment that they are in. It is very important after the event to make sure that you have the details right and if you can replay a phone call or even reconstruct things several days later to make sure that you have the right sequence of events, in the case of bushfires and other things, it becomes an absolutely important mechanism for us to do that The way that the structure is now, that is limited to a certain number of phones. In an emergency situation, you may well have everyone in a centre on a different phone looking at different communications with different agencies. It is very instructive to be able to put that back together again at a later time.

Mr Gifford-The term 'facility' was quite purposely chosen because it is defmed in section 5 of the interception act to have the same meaning as it has for the telecommunication act. It is defmed in that act to mean a building, a vessel-! will stay with 'building' because that is the part I need-' or any part of that building'. That gives the Attorney-General the ability to declare only one part of the building. If we use the example of this room, he could declare this room to be a facility, thereby allowing emergency services organisations to ensure that, perhaps where the Hansard operators are this evening, they are not recorded lines. It is making sure that those privacy concerns can be met by ensuring that what is outside of that facility will not be recorded. Senator LUDWIG-How can they be met when nobody knows whether a part or the whole of the building has been designated, if it is a report to the Attorney-General which is not a legislative instrument and cannot be reviewed by parliament? Mr Gifford-As the representative from the National Emergency Communications Working Group has said, all personnel within the particular facility would be made aware of which part of the particular facility is a declared facility and that things outside of that facility, including things such as a mess room, would not be recorded and that those particular lines would be available for personal communications and administrative communications. Senator LUDWIG-Where is the legislative requirement for that?

Mr Gifford-There is no legislative requirement for that. Senator LUDWIG-No.

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Mr McDonald-The situation is that surely it is not necessary to go to that sort of level of detail in the legislation. It is a workplace and a workplace which has all of the usual workplace relations issues that any workplace would have, in the sense of making sure that people are aware of what the situation is and having other areas where that would not be the case. Is there any advantage in perhaps outlining what these facilities are like?

Federal Agent Negus-From the AFP's perspective, we would not intend to designate buildings as such. It would be specific areas within buildings. I think communications centres and elements like that would be the general areas that we are talking about here. There is certainly no intention to widen that out to areas where investigators might be sitting, just because there might be the odd call come into those people. From our perspective, it is very much a closed environment now. We would certainly be looking at supplying or providing other telephones for people. We acknowledge that people need to make personal calls during work time and there is a tolerance for that, as long as that is reasonable. We would certainly have no issue with providing that sort of service.

I think Sergeant Lucas outlined, from the AFP's perspective, that these are very much contained units, very secure units, and people do not just wander in and out of them willy-nilly. If you are in there, you are in there to do a specific task. From my experience in these particular places, people look to have some sort of reassurance that they have· not missed an important call and there is an ability to recapture that at a later time. As far as intruding on people's privacy, as has been said a couple of times before, these are very professional people who work in a high-pressure environment where they might have numerous calls coming in in a very short space of time and, for most of them, I think they would appreciate this, as long as they had an opportunity to use communications devices outside of that environment which we would certainly look to provide.

ACTING CHAIR-Mr McDonald, I had a fairly high degree of certainty a moment ago that the staff adjacent to these facilities would be (a) very clear where the facility was an.d areas outside. I have to say, from the contribution of Mr Gifford, he perhaps suggested we would be proscribing those areas not that were the facility but in fact proscribing areas within a building that were outside that facility. I would like some clarification that it is the intention-because we do not have any other opportunity to clarify that since it is outside of the parliamentary purview-that these areas will in fact be proscribed; will be an area within a building quite clearly proscribed. Perhaps you can clarify that.

Ms Sellick-The declaration that the Attorney makes will certainly be declaring facilities. It could be part of a building, it could be a particular floor within a particular building, depending where the call centre­ commonly called-is situated within a building. That particular thing will be declared to be the emergency service facility. It is within the normal then standing operation procedures of the professional services that that area is then made known to the staff within those areas-that that area that has been declared by the Attorney

is the area within which telecommunications will be intercepted. In the same way that there is no requirement for security clearances to be identified as to where you go within a particular area, there is no legislation that says you need to have a top secret or a secret clearance before you can go within an area. It is a standard operation procedure of all Commonwealth government departments, and even private contractors, that you need to have a particular clearance to go somewhere. That

is what we are looking for here. We are not overprescribing. We are simply saying that, once it has been declared by the Attorney, the staff will be made known through the normal operation procedures of those organisations. That was our intention. Senator LUDWIG-But the legislation does not preclude the Attorney-General from being satisfied of other facilities outside of what you have described being proscribed. That is the case, isn't it?

Mr McDonald-We are still limited by the purpose of the legislation, which is about the emergency services functions. It is not a question of there being a capacity to proscribe buildings willy-nilly. It is tied to that function. Ms Sellick-We come back to the point that you raised at the beginning, Senator: the premises themselves have to have been established for the purpose of dealing with emergency service facilities. If, in the end, that is

a caravan out in operational field for whatever crisis takes place, if the Attorney is satisfied that that particular premises for that particular time is, in fact, the emergency call centre, that is what will be proscribed. But before he declares it to be such, we have to be satisfied that it was in fact established for dealing with requests for assistance in an emergency.

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Senator LUDWIG-There is no review of that, once the decision is made. Ms Sellick-Correct.

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Senator LUDWIG-There is then no subsequent check whether or not you can then override that, expand it, once the (3AB) test is applied. You can then come back and alter it as many times as you like. That is true, isn't it?

Mr McDonald-Yes, I think so. But you would need to have that sort of flexibility, I would have thought, where you have adjustments in the facilities. I do not think you have had any difficulties in terms of expectations about how staff would react to it. We are not aware of any concerns of that nature.

Federal Agent Negus--No, that is right. Since the submission has gone in, there has certainly been no contact from the Federal Police Association or any other body or any member of staff, as far as we are aware.

Ms Sellick-Ultimately, Senator, if the evidence came down to be nsed and they challenged the validity of the interception on the basis that it was not a declared facility, then any attempt to use the evidence would be thrown out. Once again, it comes back to the integrity of the situation. There is that final call that maybe you get a situation where the lawyers or the defence is arguing that a warrant should have been obtained because the situation was not a facility established for the reception of an emergency. Ultimately, it is challenged in that way.

Mr McDonald-Yes. It has to be work within its purpose; the purpose if the legislation. It would be pretty easy to establish what the purpose of the facility was.

Senator LUDWIG-I think we have just about run out of time. But I am interested in the evidentiary basis where you have decided that you require this power, in the sense of the need, the mischief it is solving. We have heard some from, I think, the emergency services people themselves, but from the way that the legislation is structured and ,the need for the Attorney-General to have that facility which does not have parliamentary scrutiny, it seems to me that there is a lack, at least from the submitters, of reasons that have been put forward by the Attorney-General to substantiate why these powers are required. But given the nature of the time, I am happy to take that on notice, if you are wanting to. Mr McDonald-Yes. As we said in the opening, the rationale for designating a facility all goes down to the practicality of trying to do it by numbers. Given that these facilities are all government facilities with ministerial involvement, it is one of these areas where legislative proscription of every detail is simply not as necessary as it would be if we were trying to regulate the private sector.

Senator LUDWIG-You could limit the legislation to government agencies only?

Mr McDonald-The legislation is such that we have been given administration of this by the Attorney­ General in terms of declaring the areas. It would be a little difficult for us to absolutely rule out some private aspect to it, even though it would appear that these are predominantly government facilities.

Senator LUDWIG-But they are not all government? You changed it to 'predominantly' .

Mr McDonald-My understanding is they are, but we would not want to have a situation where we were ruling it out. Of course Telstra is involved-Senator LUDWIG-I did not want to go there!

Mr McDonald-What I was driving at is that the emergency services are administered by responsible government officials. Consequently, we cannot equate this with trying to regulate masses of small businesses. That is a totally different kettle of fish. ACTING CHAIR-Mr McDonald, you may have taken a question on notice there.

Mr McDonald-I am sure we have that option. ACTING CHAIR-You will have to provide that by 1200 hours tomorrow.

Mr McDonald-I think that can be done pretty easily. Senator KIRK-That is noon in layman's terms.

Mr McDonald-Yes. ACTING CHAIR-I thank the witnesses who have given evidence to the committee today. I now declare the meeting of the Legal and Constitutional Legislation Committee adjourned. Committee adjourned at 7.34 pm

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The Senate

Legal and Constitutional Legislation Committee

Provisions of the Migration Litigation

Reform Bill 2005

May 2005

235

© Commonwealth of Australia 2005

ISBN 0 642 71512 2

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra

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MEMBERS OF THE LEGISLATION COMMITTEE Members Senator Marise Payne, Chair, LP, NSW Senator the Hon. Nick Bollcus, Deputy Chair, ALP, SA Senator Brian Greig, AD, W A* Senator Joseph Ludwig, ALP, QLD Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member * Senator Aden Ridgeway, AD, NSW to replace Senator Brian Greig for matters relating to the Indigenous Affairs portfolio * Senator Andrew Bartlett, AD QLD to replace Senator Brian Greig for the inquiry

into the provisions of the Migration Litigation Reform Bill2005.

Participating Members Senator the Hon. Eric Abetz, LP, T AS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, W A Senator George Brandis, LP, QLD Senator Bob Brown, AG, TAS Senator Geoff Buckland, LP, QLD Senator George Campbell, ALP, NSW Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Hon R Colbeck, LP, TAS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, W A Senator Christopher Evans, ALP, WA Senator the Hon. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Harradine, IND, TAS

Secretariat Mr Owen Walsh Secretary

Senator John Hogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Linda Kirk, ALP, SA Senator Susan Knowles, LP, WA Senator Ross Lightfoot, LP, WA Senator Kate Lundy, ALP, ACT Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NP A, VIC Senator Jan McLucas, ALP, QLD Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator Aden Ridgeway, AD, NSW Senator the Hon. Nick Sherry, ALP, TAS Senator Ursula Stephens, ALP, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Watson, LP, TAS

Ms Julie Dennett Principal Research Officer

Ms Sophie Power Ms Marina Seminara Ms Judith Wuest

Suite S1.61 Parliament House

Principal Research Officer Executive Assistant (to April 2005) Executive Assistant (from May 2005)

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au

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TABLE OF CONTENTS

Members of the Legislation Committee Abbreviations

CHAPTER!

INTRODUCTION

Background

Conduct of the inquiry

Acknowledgement

Note on references

CHAPTER2

OVERVIEW OF THE BILL

Significant provisions of the Bill

CHAPTER3

KEY ISSUES

Powers of summary dismissal

Deterring 'unmeritorious' proceedings

Imposition of time limits for judicial review

Constitutional validity of a 'purported privative clause decision'

Possible alternative approaches

LABOR SENATORS ADDITIONAL COMMENTS

AUSTRALIAN DEMOCRATS DISSENTING REPORT

APPENDIX!

SUBMISSIONS RECEIVED

APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE

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Ill

Vll

1

1

2

2

3

3

3

5

5

5

11

23

25

29

35

37

39

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AAT

ALHR

ARC

the Bill

DIMIA

FMC

HREOC

the Judicial Review Bill

the Law Council

Migration Act

the Penfold Report

QPILCH

RILC

SBICLS

UNHCR

ABBREVIATIONS

Administrative Appeals Tribunal

Australian Lawyers for Human Rights

Administrative Review Council

Migration Litigation Reform Bill 2005

Department of Immigration and Multicultural and Indigenous Affairs

Federal Magistrates Court

Human Rights and Equal Opportunity Commission

Migration Amendment (Judicial Review) Bill 2004

Law Council of Australia

Migration Act 1958

Migration Litigation Review

Queensland Public Interest Law Clearing House

Refugee and Immigration Legal Centre

South Brisbane Immigration and Community Legal Service

Office of the United Nations High Commissioner for Refugees

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CHAPTER!

INTRODUCTION

Background

1.1 On 16 March 2005, the Senate referred the provisions of the Migration Litigation Reform Bill 2005 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 11 May 2005.

1.2 The Bill seeks to amend the Migration Act 1958 (the Migration Act), the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903, and aims to improve the overall efficiency of migration litigation.

1.3 The Bill is similar (although not identical) to the Migration Amendment (Judicial Review) Bill 2004 (the Judicial Review Bill) which was the subject of inquiry and report by this committee in June last year. 1 The 2005 Bill is far more extensive than the Judicial Review Bill, which lapsed when Parliament was prorogued for the federal election in October 2004.

1.4 In October 2003, the Federal Government commissioned the Migration Litigation Review (the Penfold Report) conducted by Hilary Penfold QC to inquire into the efficient management of migration cases. According to the Second Reading Speech, the Bill is based on recommendations from the Penfold Report. 2 However, the Report has not been provided to the Committee or published. Given this, the Committee has requested a copy of the Report on several occasions.

Conduct of the inquiry

1.5 The committee advertised the inquiry in The Australian newspaper on 23 March 2005, and invited submissions by 1 April 2005. Details of the inquiry, the Bill and associated documents were placed on the committee's website. The committee also wrote to over 80 organisations and individuals.

1.6 The committee received 25 submissions which are listed at Appendix 1. Submissions were placed on the committee's website for ease of access by the public.

1.7 The committee held a public hearing in Canberra on 13 April 2005 . A list of witnesses who appeared at the hearing is at Appendix 2 and copies of the Hansard transcript are available through the Internet at http://aph.gov.aulhansard.

See Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004.

2 The Han Philip Ruddock MP, Attorney-General, Second Reading Speech, House of Representatives Hansard, 10 March 2005, pp 2-3 .

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Acknowledgement

1.8 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.9 References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

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CHAPTER2

OVERVIEW OF THE BILL

2.1 This chapter briefly outlines the main provisions of the Migration Litigation Reform Bill 2005 (the Bill).

Significant provisions of the Bill

2.1 The main proposals in the Bill aim to:

direct migration cases to the Federal Magistrates Court (FMC) (Item 17);

• ensure identical grounds of review in migration cases (Item 17);

• impose uniform time limits in migration cases (Item 18 and Items 30-33);

• facilitate quicker handling of migration cases (Item 10 and Item 37); and

• deter unmeritorious applications (Items 7, 8 & 9 and Item 38).

2.2 The Bill also attempts to extend elements of Parts 8 and 8A of the Migration Act so that time limits on judicial review applications and the courts' jurisdiction in migration matters will apply to all decisions, even a decision that is arguably affected by jurisdictional error (a 'purported privative clause provision').

Direct migration cases to the FMC- Item 17

2.3 The Federal Court will have limited jurisdiction under the Migration Act in migration matters. This is restricted, first, to complex cases referred to it by the FMC and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under sections 501, SOlA, 501B or 501C of the Migration Act. This second group of migration cases involve decisions to refuse to issue or to cancel a visa, or to deport a person, on 'character' grounds.

2.4 Nearly all migration cases remitted from the High Court will be channelled directly to the FMC. Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AA T or the Minister personally.

Ensure identical grounds of review in migration cases- Item 17

2.5 The grounds of review in migration matters in the FMC will be the same as those in the High Court under section 75(v) of the Constitution. Section 75 of the Constitution states that the High Court has 'original jurisdiction' (the authority to hear cases) in all matters:

(v) in which a writ of Mandamus [directing that an officer do a certain action] or prohibition [preventing an officer from doing a certain action] or

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an injunction {halting a current or future action for a period of time} is sought against an officer of the Commonwealth.

Impose uniform time limits in migration cases- Item 18 and Items 30-33

2.6 Applications to the FMC, Federal Court and the High Court must be made within 28 days of actual (not deemed) notification of a decision. The 28 day time limit can be extended by the court for a further 56 days if a request for further time is made within 84 days of actual notification of the decision, and the court is satisfied that it is in the interests of the administration of justice to extend the time limit.

Facilitate quicker handling of migration cases -Items 10 and 37

2.7 The Bill includes amendments which attempt to improve court processes. There is express provision for the High Court to remit migration and other cases to another court without an oral hearing.

2.8 When commencing a proceeding in the FMC, the Federal Court and the High Court in relation to a tribunal decision, applicants must disclose details of any previous application for judicial review in any court in relation to that decision.

Deter unmeritorious -Items 7, 8 & 9 and Item 38

2.9 The Bill aims to strengthen the power of the High Court, the Federal Court and the FMC to deal with unmeritorious proceedings by broadening the grounds on which a court can summarily dispose of proceedings. A court would be able to dispose of a matter summarily on its own initiative if it is satisfied that there are 'no reasonable prospects of success'.

2.10 The Bill prohibits persons, including lawyers and migration agents, from encouriiging the initiation or continuation of 'unmeritorious' migration litigation, with the risk of a personal costs order for contravening this obligation. Lawyers acting for applicants in migration cases will also be required to certify at the institution of proceedings that an application has merit.

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CHAPTER3

KEY ISSUES

3.1 Although many submissions and witnesses were supportive of any efforts to improve the overall efficiency of migration litigation and, in particular, to reduce genuinely meritorious claims, the overwhelming majority of evidence received by the committee expressed strong opposition to key aspects of the Bill.

3.2 This chapter discusses the main issues and concerns raised in the course of the committee's inquiry, including:

• extension of the courts' power to summarily dispose of proceedings;

• the Bill's focus on deterring 'unmeritorious' proceedings, in particular provisions relating to personal liability for legal costs and 'certification' by lawyers acting for applicants in migration cases;

imposition of time limits for judicial review of migration decisions;

• constitutionality of the term 'purported privative clause decision'; and

• possible alternative approaches to the Bill.

Powers of summary dismissal

3.3 Many submissions and witnesses were critical of provisions in the Bill which expand the power of the courts to dismiss migration cases summarily where there are 'no reasonable prospects of success'. For example, the Queensland Public Interest Law Clearing House (QPILCH) and the South Brisbane Immigration and Community Legal Service (SBICLS) were strongly opposed to such provisions, arguing that the provisions 'represent a significant shift away from the legal principles which have traditionally governed summary dismissal of actions'. 1 Others agreed that the Bill moves away from 'the carefully constructed common law test, which requires that a case be manifestly groundless'2, or hopeless or bound to fail. 3

3.4 Professor George Williams and Dr Ben Saul from the Gilbert and Tobin Centre of Public Law explained that the higher common law threshold 'ensures that cases are not disposed of prematurely, before all the evidence has become available during the proceedings on the merits'.4 Further, they argued that '(r)equiring a _

Submission 11 , p. 7.

2 For example, Professor George Williams and Dr Ben Saul, Submission 14, p. 4.

3 For example, Australian Lawyers for Human Rights, Submission 19, p. 2.

4 Submission 14, p. 4.

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reasonable prospect of success risks depriving applicants of a fair opportunity to mount a case'. 5

3.5 Professor Williams and Dr Saul also pointed out that broadened powers of summary dismissal would have long-term consequences:

Particularly where public interest test cases are being run to challenge accepted interpretations of the law, there may be 'no reasonable prospect of success' in the immediate case, but the litigation may contribute in important ways to the future evolution of common law principles. Discouraging litigation where there is no reasonable prospect of success risks chilling the progressive development of the law, and stymieing the correction of bad precedents. 6

3.6 Australian Lawyers for Human Rights (ALHR) submitted that the existing common law test for summary dismissal 'is entirely adequate to identify cases without reasonable prospects of success and allow others to be fully argued'7 and that '(t)he new legislative test set out in the Bill is unclear and will, in fact, result in further litigation to test its limits'. 8

3. 7 The Refugee Advocacy Service of South Australia noted the possible adverse impact on refugees:

... migration law can be very complex and therefore the current safeguards on the use of summary judgement are even more pertinent to these cases to avoid the injustice of summarily restricting a person's right to have their day in court. Even more so because of the potential for a forced return of refuges to persecution including torture, imprisonment and death. 9

3.8 At the hearing, Ms Nitra Kidson from QPILCH told the committee that existing summary dismissal powers have been used to dismiss cases where, for example, applications were not supported by sufficient evidence or applications where the matters have previously unsuccessfully litigated. 10 She argued that the Federal Government's justification for the Bill in this respect is therefore questionable:

Those are the very types of cases of which the government complains, and the courts have demonstrated that under existing powers they are more than prepared to summarily dismiss them .. . Before it goes about seeking to increase those powers it is incumbent upon the government to at least test the limits of the existing powers and to demonstrate where they are deficient. What cases does the government say are not being dismissed

5 Submission 14, p. 4.

6 Submission 14, p. 4.

7 Submission 19, p. 8.

8 Submission 19, p. 8.

9 Submission 1, p. l.

10 Committee Hansard, 13 April2005, p. 20.

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summarily that should be dismissed summarily? Tell us the details and nature of those cases and explain how the interests of justice are served by having those cases dismissed without a full hearing.11

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3.9 Further, QPILCH and SBICLS submitted that the summary dismissal provisions in the Bill were perplexing since the Federal Government has rarely sought summary dismissal of migration cases in the Federal Court but, in cases where it has pursued summary dismissal, has enjoyed high rates of success.12 They noted that their research shows that there have been 'only four cases where the Minister sought summary dismissal, and the Minister was successful in three of those cases'. 13 At the hearing, Ms Kidson from QPILCH told the committee that her own research indicated that:

... out of about 450 decisions made by the full court ... around 55 or 60 [were]. .. cases that would probably have been amenable to summary judgment. They were cases where the applicant never at any stage really articulated a case, did not submit any further material, was unrepresented

and often did not appear at a hearing, yet those were cases that were allowed to proceed to a final hearing. I cannot say why that happened. Again, it seems to be in contrast to the practice in the Federal Magistrates Court. Otherwise, that is a question that only the government could

answer. 14

3 .I 0 Therefore, QPILCH and SBICLS argued that it could be inferred that:

It is ... the apparent under-utilisation of the existing summary dismissal procedures - rather than any inadequacy in the powers themselves - which has contributed to the problem of grossly unmeritorious cases proceeding to a full hearingY

3.11 Ms Debra Mortimer, representing the Public Interest Law Clearing House (Vic) and the Victorian Bar offered an explanation as to why the powers of summary dismissal are rarely invoked by the Minister:

All federal courts have summary dismissal provisions as a matter of course. They are rarely invoked by the minister in these kinds of proceedings. If one asks why, then in my experience the answer is that it is because it is not possible to say independently and confidently that a case is manifestly

hopeless. Anglo-Australian law has long respected, considered and entrenched an approach to letting people have access to the courts on the merits of their cases. The Bar and PILCH think that is an important principle that ought not to be cast aside. This area is littered with examples

11 Committee Hansard, 13 April2005, p. 20.

12 Submission 11, p. 14.

13 Submission 11 , p. 12.

14 Committee Hansard, 13 April2005, p. 21.

15 Submission 11, p. 14.

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where, if one proceeds on the law as it is today, one might say that a particular argument or claim is hopeless, and then a decision will come down tomorrow that will tell, for example, the full Federal Court that it is wrong. 16 .

3.12 The Law Council of Australia (the Law Council) expressed its general reluctance to support any lowering of the standard for summary dismissal of proceedings and argued that:

.. .if there is a problem being experienced in one area of immigration decision making, attention should be paid to that area, with consideration being given to the reasons behind the problem being experienced. There would appear to be no justification for heavy handed provisions that are of general application. 17

3.13 At the hearing, Professor Mary Crock on behalf of the Law Council argued that:

By introducing this legislation across all of the courts, I think the danger is that it looks as though the legislation is attempting to direct the courts to knock out cases at the risk, I think, of restricting a vital part of the judicial function.18

3.14 In its submission, the Law Council argued further that:

The provisions are of particular concern in the context of proposals to deter unmeritorious appeals. The combined effect of the scheme proposed may be to stifle the development of the Common Law in the immigration area. The system proposed could have the effect of making it difficult for a lower court to consider a novel submission on a point of law where an adverse precedent has been set by a higher court. 19

3.15 At the hearing, Professor Crock stated that this would have the effect of pushing cases up to the higher courts:

It will have exactly the opposite effect to the one intended. The common law depends for its development on courts being allowed to consider cases that, on their face, may not look promising. Lower courts have to be able to consider matters and explore the avenues that are there. 20

3.16 The Attorney-General's Department's response to the concern that the Bill would discourage novel or test cases was as follows:

16 Committee Hansard, 13 April2005, p. 35.

17 Submission 21, p. 9.

18 Committee Hansard, 13 April2005, p. 10.

19 Submission 21, p. 9.

20 Committee Hansard, 13 April2005, p. 10.

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The view of the government is that in novel and test cases there is always something arguable in the circ*mstances of the case, which means that the court would not be satisfied that there is no reasonable prospect of success. Accordingly, an adviser would not be at risk of a cost order in those cases · and the summary dismissal provisions would not be activated. It is important to read these provisions in the context of a legal system with the key characteristic that all statutory provisions are subject to judicial interpretation and that this is an evolving process. That feeds into the construction of these provisions.21

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3.17 Several submissions also pointed out that the Bill introduces new summary dismissal powers which appear to apply to all applications before the High Court, the Federal Court and the FMC, not just those relating to migration.22 The Administrative Review Council noted that 'the short title to the Bill gives no indication of this dimension to the Bill, a situation only assisted to a degree by its long title'.23

3.18 The New South Wales Bar Association argued that the Bill should be clearer in defming the circ*mstances in which the courts should be able to summarily dismiss proceedings:

... the opportunity now exists for greater specificity in the proposed provisions referred to above: much court time and parties' expense will be spared if the Parliament were now to make it clearer which of the range of meanings of the expression 'reasonable prospect of success' was intended. The matter has more particular significance in the present bill because the expression is also central to the provisions that impose new obligations on advisers and a new potential liability for costs orders against advisers in migration litigation. 2

3.19 Ms Kidson from QPILCH agreed that the Bill lacks clarity, not only in relation to its summary dismissal provisions, but also with respect to the way in which other provisions in the Bill would operate:

The bill changes the bar without defining it. I guess that is the other objection we have to the bill: with the summary dismissal provisions and with the same bar for summary dismissals applied to the potential liability for costs, it tells us that the bar we all know does not apply, but it does not

tell us what the new bar is . So it tells us that all the court cases where there is talk about them being doomed to failure, having no real prospect of success etcetera, do not apply. It gives us absolutely no guidance as to what the new test is, and yet from the moment of commencement of the act

lawyers-and who knows who else the bill is meant to be applied to,

21 Committee Hansard, 13 April2005, pp 46-47.

22 For example, see QPILCH and SBICLS, Submission 11, p. 7; Administrative Review Council, Submission 6, p. 2.

23 Submission 6, p. 2.

24 Submission 20, p. 3.

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because it is not limited to lawyers-are having to structure the advice they give and make decisions about who they help and who they do not help without any idea what this new bar is. It is ironic that a bill whose object is to reduce litigation contains so many ambiguous provisions that scream for judicial scrutiny. It is absolutely ironic.25

3.20 Ms Suhad Kamand from the Immigration Advice and Rights Centre agreed that the Bill, as a whole, contains very little guidance for those dealing with its practical repercussions:

What the explanatory memorandum has said .. .is that there is an obligation to assess whether something has a reasonable prospect of success. The legislation tells us that it need not be hopeless or bound to fail for it to have no reasonable prospects of success, but the explanatory memorandum indicates that a greater degree of flexibility is given to the courts than has been in the case law to date. There is no guidance as to how flexible the courts should be or what should guide that flexibility. The intimidating nature of the legislation would have the effect of decreasing the willingness of practitioners to advise m this area until some case law is established that would set some parameters to these obligations.26

3.21 However, the Administrative Review Council (ARC) was of the view that 'there would be little risk of the courts interpreting the proposed summary judgment provisions rashly or without careful regard to countervailing access to justice principles'

27 since this area of law is one in which, 'having regard to fundamental principles of access to justice, the courts have traditionally trodden a careful path.' 28

3.22 At the hearing, Mr Wayne Martin QC, President of the ARC, elaborated on the reasons for the ARC's support of the summary dismissal provisions in the Bill:

The reason we support that expansion of the scope of summary judgment is that the principles concerning the traditional enunciation of the reluctance of the courts to dismiss a case without it being fully heard, as found in High Court cases like Dey and the Victorian Railways Commissioners and General Steel, evolved in quite a different era and quite a different litigious context, an era in which there was a lot less litigation and a lot less pressure on limited judicial resources. The world has changed significantly since those statements were made, in that there has been, relatively speaking, a torrent of litigation in all jurisdictions which has placed significant pressure on limited judicial resources. My own view is that that requires a reassessment of the principle to ensure that we are allocating those limited judicial resources as efficiently as possible. In that context, if a case has no

reasonable prospect of success, it seems to us to be in everybody's

25 Committee Hansard, 13 April 2005, p. 24.

26 Committee Hansard, 13 April2005, p. 27.

27 Submission 6, p. 2.

28 Submission 6, p. 2.

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interests-the interests of the parties, the court and the public in the efficient allocation of the resources of the court-that the fact be recognised sooner rather than later.29

The committee's view

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3.23 The committee acknowledges that extended powers of summary dismissal under the Bill represent a significant departure from the existing common law test. While the committee notes the comments of the ARC, in particular that the courts would in all likelihood exercise caution in relation to the extended power, the committee expresses its serious concerns in relation to such an extension. The committee also notes evidence that the courts' existing extensive powers of summary dismissal are rarely used. Therefore, the committee concludes that the broadened powers of summary dismissal must be subject to review by Parliament after an initial period of operation. To ensure that this occurs, the committee's view is that the Bill should be amended to provide that the relevant provisions of the Bill shall cease to have effect after 18 months of operation.

Recommendation 1

3.1 The committee recommends that the Bill be amended to provide that the proposed provisions in Items 7, 8 and 9 of the Bill that confer the broadened powers of summary dismissal are repealed at the end of 18 months from the date of their commencement.

Deterring 'unmeritorious' proceedings

3.24 The committee received evidence which expressed strong opposition to the provisions relating to the deterrence of 'unmeritorious' proceedings. For example, Ms Suhad K.amand from the Immigration Advice and Rights Centre told the committee that, at a fundamental level, the Bill is flawed because it assumes that since the Federal Government wins approximately 93 per cent of judicial review applications then it automatically follows that 93 per cent of cases are 'unmeritorious':

We strongly object to the much used ill-defined and empirically unsupported assumption by those promoting the bill that the high volume of migration litigation is due primarily to unmeritorious migration litigation. In our view that sort of analysis is unhelpful and simplifies the causes of the

high volume of migration litigation unfairly by reference to one cause. 30

3.25 Ms Debra Mortimer, representing the Public Interest Law Clearing House · (Vic) and the Victorian Bar commented on the inappropriate use of the word 'unmeritorious' in the Second Reading Speech and the Explanatory Memorandum to the Bill:

29 Committee Hansard, 13 April2005, p. 15.

30 Committee Hansard, 13 Apri12005, p. 25.

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Our position on that is that it is a value laden word that is really inappropriate to use in this kind of situation. It is an especially inappropriate criticism when there is such a paucity of funding for . representation of asylum seekers. People who are in this position are not the best judges of whether they have meritorious administrative law claims. 31

3.26 In its submission, the Office of the United Nations High Commissioner for Refugees (UNHCR) argued that:

... a cautious approach is warranted in seeking to reduce unmeritorious litigation in asylum cases. Measures that may have the unintended affect of discouraging applications that are not certain of success, but are nonetheless not abusive, may detract from what is currently a positive aspect of Australia's system. 32

3.27 UNHCR also noted that since Australian migration law is complex, '(t)here is no "bright line" separating meritorious and unmeritorious court applications'. 33

Further:

In UNHCR's view, it would be unfortunate if asylum seekers and their legal advisers were discouraged from applying to the Court in cases of this nature, particularly where the outcome may have implications not only for the individual, but also for asylum seekers in general, and may also serve to clarify the law. Similarly, summary dismissal of such cases would seem to be inappropriate. This issue could be addressed by amending the items in the bill that rely on the "no reasonable prospects of success" formulation, to make it clear that cases raising significant questions of law are not intended to be subject to those provisions. 34

3.28 HREOC argued that the effect of the 'unmeritorious' provisions of the Bill could be devastating and may have the opposite effect to that intended in improving the efficiency of proceedings where litigation has already commenced:

... this is one of the key things that we are concerned about-not only is that person deprived of legal advice but the court is deprived of somebody who can make sense of what is potentially a morass of facts that really require a lawyer to refme and present them in their proper order and in their proper form so that a court can apply the act to them and make sense of the application. So, in our view, the provision of legal advice potentially makes the proceedings more efficient. Insofar as the provisions of the bill lead in the opposite direction, that seems to have an undesirable result to us.

35

31 Committee Hansard, 13 Apri12005, p. 34.

32 Submission 3, p . 2.

33 Submission 3, p . 2.

34 Submission 3, p . 3.

35 Mr Craig Lenehan, HREOC, Committee Hansard, 13 Apri12005, p. 6.

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Persona/liability for legal costs

3.29 Many submissions and witnesses expressed apprehension about the provision of the Bill dealing with personal liability for legal costs. Submissions and witnesses were concerned about the breadth of the provision and its potential capacity to create unnecessary apprehension for lawyers and others who assist, advise and act for disadvantaged clients in migration matters.

3.30 For example, QPILCH and SBICLS argued that:

The provisions relating to personal liability for legal costs are highly ambiguous, needlessly broad, and have significant potential to discourage lawyers from representing and assisting applicants with complex or uncertain cases, particularly where legal services are required on a pro bono basis.36

3.31 Professor Mary Crock from the Law Council told the committee that there were two main problems with the costs order provision of the Bill:

I think the point is that in other contexts the focus is on the cost order against somebody who is plainly responsible for the carriage of proceedings, namely, a solicitor on the record. There are two problems with this section of the bill. The first is that the cost order is tied to the definition of unmeritorious; it is not disconnected from the provisions relating to what constitutes an unmeritorious decision. The second aspect of it is its breadth

and the fact that it does not just capture, if you like, the person who might have the carriage of litigation before a court. It covers any person. 37

3.32 In evidence, Professor Williams agreed that the provision is an overly broad approach to addressing problems of protracted or unworthy judicial review litigation:

In general, I support the idea of cost orders being available to courts in circ*mstances where there is an abuse of process or a range of other matters that ought to lead to special types of costs or even damages being awarded. The problem with this is that it does go far beyond the carefully constructed limits that have been imposed. I am concerned at the absence of an appropriate knowledge requirement on the person who might be

'encouraging' another person. It· may be possible that something said without knowledge that might not be seen as normally giving rise to any legal consequences in this case might. You can imagine many circ*mstances where well-meaning people might make comments

encouraging people, and it is not normally accepted that that should lead to these types of cost orders. 38

36 Submission 11 , p. II.

37 Committee Hansard, 13 April2005, p. 12.

38 Committee Hansard, 13 April2005, p. 30.

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3.33 The New South Wales Bar Association argued that the costs order provision contains no clarity:

... there is no clarity in relation to the matters ... reasonable prospects of success, 'encourage', 'proper consideration', 'purpose' and 'the objectives which the court process is designed to achieve' . The courts should not be left to work out the content of these expressions over time and to the prejudice of litigants and advisers. 39

3.34 Further, the New South Wales Bar Association argued that a lawyer should not be penalised under the provision 'where a lawyer explains any weaknesses in the proposed migration litigation to his or her client but the client, having considered those weaknesses, decides to commence or continue the migration litigation'.40

3.35 Dr Ben Saul agreed that the provision could be interpreted broadly, but that the courts may also exercise caution in this area:

I agree with the analysis that the word 'encourage' could be interpreted broadly. I think there is a real prospect that a court probably would interpret it as narrowly as it could, given the manifest problems that would arise. The word 'encourage' is used so broadly that you can imagine all sorts of situations that would be covered by it. Even forms of moral encouragement could be covered-for example, wishing somebody the best in their forthcoming litigation or encouraging them to continue with that litigation in the hope that it leads to a better life for someone. I think on a normal reading it could lead to the inclusion of those types of activities. As I say, it is possible a court would read it narrowly, but it may not work that way.

41

3.36 Mr Wayne Martin QC, from the ARC, also conceded that the provision is very broad but, despite not expressly including certain protections and reassurances, would in all likelihood be interpreted narrowly by the courts:

There is a reasonable basis for criticism of its breadth. The only constraints upon it are, firstly, the requirement that the litigation has no reasonable prospect of success and, secondly, that the person against whom a costs order is made must have a purpose which is unrelated to the objectives which the court process is designed to achieve. Viewing that with my lawyer's glasses on, I would read that as: pursuit of litigation for an improper purpose. That is why I give it a more constrained reading than a number of the submitters. 42

3.37 Some constitutional issues were also raised in relation to this provision. For instance, Professor Williams told the committee that:

39 Submission 20, p. 6.

40 Submission 20, p. 6.

41 Committee Hansard, 13 April2005, p. 31.

42 Committee Hansard, 13 April2005, p. 17.

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I am troubled by the possibility of a court making an order in a matter against people who are not parties to the matter and not normally seen as connected to the matter. I can see the possibility of constitutional issues arising from that in that it arguably extends beyond the power of the court to make orders beyond that group of people, particularly to people who clearly here would be third parties in that they do not actually have any active involvement in the litigation. 43

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3.38 The committee also received argument that the costs order provision may also be unconstitutional because it directs a court to consider whether a personal costs order should be made. The Co-ordination Committee, Refugee Action Coalition NSW argued that this would amount to 'an unconstitutional intrusion into federal judicial power'

44 since the Constitution 'delineates a clear separation of powers between the legislative and judicial branches of government'.45

3.39 Some of the possible adverse effects of the costs order provision were raised with the committee. QPILCH and SBICLS submitted that:

The great irony, and tragedy, of the proposed scheme is that it will discourage representation in borderline or difficult cases - the very cases that most require skilled advocacy - and achieve very little in the way of reducing grossly unmeritorious litigation, given ... that the overwhelming majority of applicants in unmeritorious litigation are self-represented.46

3.40 The Law Council agreed:

In cases where applicants may have a case which rests on the boundaries of established law this will deter solicitors or legal services from taking these cases and testing the established law, and supporting possibly vulnerable and meritorious applicants because of the possibility of these financial penalties.47

3.41 Many submissions emphasised the capacity of the Bill to impact negatively on free legal advice regimes such as the pro bono scheme run by the Federal Court or by law societies, as well as on specialist immigration advice agencies.48 The National Pro Bono Resource Centre contended that:

.. . these amendments may operate as a significant impediment to access to justice for migration applicants, and will act as a disincentive to the provision of pro bono legal services for such applicants. Practitioners may be willing to act for a person without charging a fee, but may well be

43 Committee Hansard, 13 April 2005, pp 30-31.

44 Submission 2, p. 5.

45 Submission 2, p. 5.

46 Submission 11 , p. 16.

47 Submission 21, p. 10.

48 For example, see Law Council of Australia, Submission 21, p. 11.

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unwilling to expose themselves to what may be perceived as an enhanced risk of personal liability for doing so. These amendments are likely to have a 'chilling effect' on their willingness to provide pro bono legal services.49

3.42 The Federation of Ethnic Communities' Councils of Australia agreed:

The possibility of imposing costs orders against lawyers and voluntary organisations will, we believe, discourage lawyers from conducting pro bono work, make it impossible for voluntary organisations and non government organisations to support people through judicial review processes and remove this important safeguard. 50

3.43 The Law Society of South Australia expressed a similar view:

The threat of costs orders is likely to result in pro bono efforts coming to a halt. The Commonwealth might think that this will give them an advantage in litigation but we submit that it will result in a huge upsurge in numbers of unrepresented litigants and increased burden on the judicial system with consequent delays. It will achieve the opposite to the outcome allegedly desired. 51

3.44 Some submissions argued that voluntary organisations and lawyers acting on a pro bono basis should be exempted from the operation of this part of the Bill. 52

3.45 However, the ARC disagreed with this view. At the hearing, its president, Mr Wayne Martin QC, offered this explanation for the ARC's assessment of the possible effects on the operation of pro bono legal services:

The reason I disagree with the proposition that the mere passage of the bill will choke off that important resource is that I find it very difficult to conceive of a circ*mstance in which, under this bill, a pro bono lawyer who has acted in good faith would be at any appreciable risk of having a costs order made against him or her. I cannot see that a lawyer acting properly in accordance with our normal professional obligation and particularly in a pro bono context would be at any risk of a judicial order. It would only be the most extraordinary case and a case that would probably lead to the conclusion that the lawyer had acted unprofessionally. That is the only circ*mstance in which a costs order would be made. 53

3.46 Mr Martin continued:

If the bodies that have engaged in giving this service looked carefully at the legislation and applied it to the services they provide I think they would

49 Submission 12, p. 4.

50 Submission 5, p. 5.

51 Submission 4, p. 3.

52 For example, see Law Society of South Australia, Submission 4, p. 3; Legal Services Commission of South Australia, Submission 13, p. 4.

53 Committee Hansard, 13 April 2005, pp 16-17.

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come to the conclusion that they would be at no appreciable risk of an order--especially in the pro bono context. I can imagine a judge taking a harsher view of a lawyer who was motivated by profit in pursuing a case that had no reasonable prospect of success. A pro bono adviser cannot have . that motive. 54

3.47 At the hearing, a representative from the Attorney-General's Department argued that pro bono lawyers are not at risk of cost orders if they are acting properly and in accordance with their professional obligations:

The government's view is that whether pro bono assistance has been provided or the lawyers are acting for a fee, lawyers who present properly prepared arguments, including raising novel arguments, have no reason for concern if they have given proper regard to the law and facts as they apply in these individual cases, so that pro bono lawyers are at no disadvantage under these provisions. 55

3.48 Some submissions and evidence expressed the view that there were existing ways in which the Federal Government could seek to deter engagement in 'unmeritorious' litigation, namely through broader professional conduct obligations. As Ms Debra Mortimer SC from the Public Interest Law Clearing House (Vic) and the Victorian Bar argued though, it would be imperative as a starting point, to ascertain precisely to whom the personal obligation and penalty provisions in the Bill are principally directed:

If they are principally directed towards, for example, counsel, I think that is offensive, completely unnecessary and does not reflect how counsel practise in this area. If they are directed towards lawyers in general, my experience, again, is that I do not know of lawyers that support or continue migration litigation for secondary purposes or anything like that. If there is evidence of that then perhaps something needs to be done. But the point is that there may be other ways in which one ought to attack individual lawyers who are supporting those kinds of practices, and that is through their professional conduct obligations-and the same with migration agents. If it is directed to a different category of person-people that are

standing behind applicants-again, I am not aware from my experience of any evidence of that being the case. 56

3.49 Others also supported the view that the costs order provision is unnecessary. For example, ALHR submitted that: Lawyers are already bound by a professional obligation and a duty to the Courts not to pursue causes of action that have no reasonable prospects of

success. The imposition of specific costs orders appears aimed at

54 Committee Hansard, 13 April 2005, p. 17.

55 Committee Hansard, 13 April 2005, p. 47.

56 Committee Hansard, 13 April 2005, p. 36.

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intimidating lawyers rather than improving access by asylum seekers to proper legal advice as to the merits of their claim. 57

3.50 Similarly, Ms Nitra K.idson from QPILCH told the committee that:

In relation to the imposition of liability for legal costs, again we do not believe the government can point to any evidence that lawyers and other persons are encouraging applicants to abuse the legal system. The explanatory memorandum talks about advisers operating behind the scenes, but I have to ask: how does the government know what goes on behind the scenes? ... Where there is abuse by practitioners, if it can be identified as a matter of reality not as conjecture, the courts already have a general discretion to award costs personally against lawyers and they have done so in the past where they have been satisfied it is appropriate. There are professional bodies whose job is to deal with any systemic conduct which is unprofessional or unbecoming. Migration lawyers, particularly, are probably the most regulated lawyers in the country because they are subject to both their own state law societies as well as the national migration agents authority. 58

3.51 ALHR suggested that a more preferable way of combating the perceived problem might be to change the restrictions on representation of migration claims:

Qualified solicitors cannot provide any advice under the Migration Act 1958, even on a pro bono basis, unless they are a registered migration agent. However, anyone can become a registered migration agent after a short-but expensive--course that does not necessarily equip people to deal with the complexities of refugee law.

A preferable system would be to have lawyers with specialist training in representing asylum seekers conducting all asylum seeker cases (other than those where the claimant is unrepresented). 59

3.52 However, despite acknowledging some concerns about the breadth and effect of the costs order provision, Mr Wayne Martin QC from the ARC told the committee that, in his view, the courts would exercise caution in interpreting it:

On balance, we came to the conclusion that one could have some confidence that the court in implementing these provisions would act sensibly and in a reserved way and would not exercise the power to award costs against a third party other than in an appropriate case, which would essentially be a case involving some significant element of abuse and culpability on the part of the person against whom the costs order is made.

60

57 Submission 19, p. 1.

58 Committee Hansard, 13 April2005, p. 2 1.

59 Submission 19, pp 6-7 .

60 Committee Hansard, 13 April2005, p. 16.

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3.53 At the hearing, the committee questioned the Attorney-General's Department and the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) in relation to concerns raised during the inquiry such as perceptions that the Bill is an attack on the legal profession; the breadth of the provision; the Uiicertain practical impact of the provision; and the necessary steps that should be taken to minimise the risks of being caught by it.

3.54 The representatives sought to clarify the operation of the provisions. For example:

The provision has a number of conditions in it for it to operate and, as you say, it is expressed in terms that a person must not encourage the litigant to commence or continue migration litigation. In the government's view, merely advising a person about their prospects of success--<>r examining their case to ascertain what their prospects of success are and to advise them of them-is not encouraging them to pursue litigation. Encouraging a person is urging or advising or assisting them to actually do something. In this case it is to actually commence or continue litigation, as distinct from advising them about the prospects of their case. So if a person does take it upon themselves to actually encourage or urge a person to pursue litigation, the person does have an obligation imposed by this provision to consider whether or not there are reasonable prospects of success and to give proper consideration to the prospects of success in a case. 61

3.55 The representatives also drew the committee's attention to the fact that the Bill gives a person the opportunity to argue why a costs order should not be made and inform the court of their precise role in the relevant proceedings. 62

They also

emphasised the need for evidence of the nature of the person's involvement in the proceedings:

As to the extent to which they help and assist and encourage, the issue that very much comes out here is precisely what they have done in the circ*mstances and whether the court believes it appropriate in the circ*mstances to make that costs order. An important safeguard that is in the bill, of course, is proposed section 486G-that before a costs order can be made, the court has to give the person an opportunity to argue why it

should not be made. So they do have the opportunity to come and explain precisely what their role is. If it is a situation where they have merely provided some advice that there is this capacity to go to a court, without making any judgements or taking it further to actually directing the person

to the court-and it can happen at times that they do direct these people to the court-then, once again, given the court's cautious approach to these matters, it is unlikely that a costs order would be made. 63

61 Committee Hansard. 13 April2005, p. 43 .

62 Committee Hansard, 13 April2005, p. 44.

63 Committee Hansard, 13 April2005, p. 44.

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3.56 The departmental representatives were also questioned on how the provision would apply to non-legally trained or experienced persons who 'encouraged' an applicant to bring a case. The committee was concerned as to how non-lawyers- such as volunteers working at a refugee support centre - could make an appropriate assessment of the reasonable prospects of success of a legal case and, thereby, avoid the risk of having cost awarded against them. The representatives argued that:

... [there is] a distinction between a person who is actually encouraging this particular litigation and a person who is advising a person on the process, advising a person that there is this possibility, but not encouraging that person to pursue that specific litigation. In general a person who is advising like that will be saying: 'This is how you go about it. It is to you to work at whether you have a chance of success in this litigation.'

3.57 Notwithstanding this, the committee fails to see how any court could reasonably be expected to determine that a non-legally trained or experienced volunteer at a refugee centre can adequately appreciate the reasonable prospects of success in the court case. The committee also remains concerned that the practical result of the proposed provisions will be to discourage people from helping refugees and migrants. This is notwithstanding assurances by departmental representatives that this is not the Federal Government's intention.

Certification requirement

3.58 Many submissions and witnesses were highly critical of the certification requirement in the Bill and its interaction with the provisions relating to personal liability for costs. For example, Ms Debra Mortimer SC, representing the Public Interest Law Clearing House (Vic) and the Victorian Bar (herself a barrister working with asylum seekers in judicial review proceedings), gave the committee an insight into the practicalities of migration law cases:

It is really inappropriate to ask lawyers to make a judgment about reasonable prospects of ·success in this area at the moment when a proceeding is issued. That is for a number of reasons. It has to do with the fluidity of the law itself in this area; but it also has to do with the reality of the way litigation is conducted. For drafters of these provisions to ask for such a certification, I think just demonstrates that they have no idea what happens in practice in this area. You do not sit down with these clients and have comfortable long conversations over days and weeks. You do not have access to all the information that was before the tribunal. Sometimes you might only see the RRT [Refugee Review Tribunal] decision the day before the time limit is about to run out. You cannot make a judgment of that kind in those kinds of circ*mstances; that is not to say that that judgment is not made. In my experience it is made regularly, carefully and bona fide . And it is made before the trial, in my experience, by counsel who appear for applicants, but you cannot necessarily do it on the day that you issue the

64 Committee Hansard, 13 April 2005, p. 45.

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application. To impose that onerous responsibility on lawyers I think is highly inappropriate. 65

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3.59 Further, Ms Mortimer told the committee that, in her experience, lawyers and barristers do their utmost to ensure that proceedings in which they are involved are not 'unmeritorious':

I do not have any experience of lawyers who have continued cases that they think are manifestly hopeless. In fact, I have the opposite experience. I have experience regularly of junior counsel ringing me to have anxious discussions about how they are going to tell clients for whom they are acting pro bono that they cannot continue to act for them because, having looked at all the material, they are not able to say that they have an arguable point. My experience in practice is that lawyers do precisely the opposite of what this bill in these provisions contemplates they do.66

3.60 QPILCH and SBILCS noted that the Bill 'does not appear to contemplate the scenario where a lawyer's view of the proceedings changes subsequent to giving the certification'. 67 In particular:

... if strict time limits are imposed, migration proceedings must often be commenced prior to an applicant's file becoming available under Freedom of Information· legislation, and before a transcript of tribunal proceedings can be prepared. It is quite possible that a lawyer's view of the merits of an application will change throughout the progress of the case as more information comes to light. If a client's case is perceived to weaken, will the lawyer be obliged to withdraw their representation, notwithstanding the resulting prejudice to the client? Does the lawyer have to withdraw the certification previously given?68

3.61 QPILCH and SBILCS also pointed out '(t)here will be many situations in which an application will have reasonable prospects of success, but where the litigation is nevertheless justified'. 69 Furthermore, the test is an objective one and, as Ms K.idson from QPILCH argued in evidence, 'the minister and the courts get the benefit of hindsight, the benefit of full argument, the benefit of all the evidence to make that judgment and to penalise the applicant's lawyer for failing to arrive at the

same conclusion as themselves'. 70

3.62 Ms Suhad Kamand from the Immigration and Rights Legal Centre told the committee that this was unrealistic:

65 Committee Hansard, 13 April 2005, p. 35.

66 Committee Hansard, 13 April 2005, p. 35.

67 Submission 11, p. 18.

68 Submission 11 , p. 18.

69 Submission 11, p. 19.

70 Committee Hansard, 13 April2005, p. 23 .

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The risk is when circ*mstances change afl:er provision of the certification. When looked at together with the strict time limits, practitioners will have in effect less than 28 days to fully assess a case and provide a certification. A freedom of information request takes around three to four months to process. So the limitation periods, when looked at together with the certification and the obligations on practitioners at the early stages of contemplating litigation, are just unrealistic. 71

3.63 The Law Council's view of the certification requirement was as follows:

The Law Council has consistently expressed the view that legislation requiring the certification of proceedings should be carefully framed to ensure that fear of the risks of failure in litigation of a case which, for example, may seem hopeless on the current state of the law should not prevent the bringing of that litigation where it is proper to test the limits of what might otherwise be thought to be settled law. It can be expected that the courts will exercise the power conferred on them by such sections judicially and not capriciously. However, the controversy surrounding the

conduct of migr~tion litigation in recent years suggests that if the Bill is passed, it is in the field of migration law that the scope of the solicitor's certificate, the solicitor's duty on giving such a certificate and the concept of "unmeritorious litigation" is likely to be given flesh and substance. 72

3.64 The Law Council also made the point that if the Federal Government's concern is 'unmeritorious' litigation in a broad sense, then certification · provisions should apply across all jurisdictions. Otherwise the insertion of such provisions in just one area 'creates the impression that the government is trying to drive lawyers out of immigration cases'. 73

The committee's view

3.65 In the committee's view, the evidence presented by representatives from both the Attorney-General's Department and DIMIA did little to allay concerns raised in relation to the 'unmeritorious' proceedings provisions of the Bill. In particular, the representatives were not able to adequately explain how these provisions would operate in practice, nor how people would be able to determine whether in fact their actions are covered by the Bill.

3.66 The committee remains concerned that too many terms in the relevant provisions are undefined and therefore have the potential to operate extremely broadly. This would in turn create considerable uncertainty for those dealing with the practical operation of the Bill, including barristers, lawyers (including those lawyers working on a pro bono basis), and not-for-profit immigration and community organisations.

71 Committee Hansard, 13 April 2005, p. 28.

72 Submission 21, p. 10.

73 Submission 21, pp 10-11.

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3.67 The committee is also mindful of evidence suggesting that one of the major adverse impacts of the Bill would be the reluctance of people to assist others with judicial review applications due to the threat of a costs order being made in the future, _ as well as 'certification' requirements that seemingly do not take into account the

realities of work in this area. The committee notes arguments that serious long-term consequences could be the result of such measures.

3.68 The committee's view is that, subject to the recommendations made elsewhere in this report, the regime proposed by the Bill ought to be allowed to operate for a relatively short period after which its operation and impact can be reviewed and evaluated. To this end, a report on the first 12 month's operation of the Act should be prepared-, and presented to Parliament. This report will, among other things, inform Parliament's consideration of any amendments to extend the operation of the summary dismissal powers beyond 18 months (see Recommendation 1 above).

Recommendation 2

3.2 The committee recommends that the Bill be amended to insert a requirement that, as soon as practicable after the end of 12 months from the date of the Bill's commencement, the Minister must cause to be laid before each House of Parliament a comprehensive report on the operation of the provisions

of the Bill.

Imposition of time limits for judicial review

3.69 The issue of time limits for judicial review applications was raised in the committee's inquiry into the Judicial Review Bill in 2004. 74 The committee examined this issue in detail in the course of that inquiry and, accordingly, will only deal briefly with it in the current report.

3.70 Many submissions and witnesses expressed opposition to the notion of time limits for judicial review applications. While not objecting to the issue of time limits per se, many argued that the Bill should contain discretion to extend time limits in cases where the interests of justice require it. 75 Further, some contended that there is

little evidence suggestinf that matters commenced in or out of time are more or less likely to be meritorious. 7

3.71 The Refugee and Immigration Legal Centre _(RILC) submitted that it was 'fundamentally opposed to the provisions of the Bill which ... seek to introduce a

74 See Senate Legal and Constitutional Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, pp 16-24.

75 See, for example, Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005, p. 4.

76 See, for example, Mr Jonathon Hunyor, HREOC, Committee Hansard, 13 April 2005, p. 6.

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regime of strict, non-extendable time limits for applicants seeking judicial review of migration decisions'.77 RILC also contended that:

... the Bill fundamentally fails to properly distinguish between meritorious and unmeritorious applications for judicial review by applying the non­ extendable time limits to all applicants. All will be caught by the provisions regardless of the merit of the case or reasons for delay. In our submission arbitrary and absolute time limits are a crude and inflexible instrument inherently incapable of operating fairly and doing justice in many circ*mstances. ?ff

3.72 Mr Jonathon Hunyor from HREOC outlined its concerns as follows:

The bill proposes, in effect, an absolute time limit of 84 days . The commission submits that there is no sufficient reason to deny an extension of time beyond this period where the interests of justice require it. To do otherwise is, with respect, to make a clear and conscious decision to put efficiency before justice. The commission submits that parliament ought not to do so, especially where there is a potential for refoulement in which the stakes are potentially life and death. Cases commenced out of time are not necessarily lacking in merit, and courts have made it clear on a number of occasions that strict time limits may result injustice being denied .. . 79

3.73 The Federation of Ethnic Communities' Councils of Australia agreed:

Time limits must be flexible enough to ensure that litigants are able to access information to support their claims for permanent residence, and to effectively brief their legal representatives. We therefore have some real concerns that the time limits proposed under ... the Bill will prevent some applicants form exercising their right to judicial review. 80

3.74 The committee also received evidence questioning the constitutional validity of imposing non-discretionary, absolute time limits for the judicial review of migration decisions since the time limit would operate in cases where the applicant could otherwise successfully argue that a decision is infected with jurisdictional error and that, at law, no decision under the Migration Act has been made.

81

3.75 The Co-ordination Committee, Refugee Action Coalition NSW submitted that:

.. . the proposed legislative changes attempt to confme judicial review by placing a defmed time limit on migration appeals. Thus we believe these

77 Submission 23, p. 4.

78 Submission 23, p. 4.

79 Committee Hansard, 13 April 2005, p. 2.

80 Submission 5, p. 4.

81 For example, see QPILCH and SBICLS, Submission 11, p . I; Public Interest Law Clearing House (Vic) and the Victorian Bar, Submission 15, p. 11.

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proposed changes are unconstitutional under section 75(v) for the very reason they are being proposed; they limit judicial review. 82

3.76 The Law Council made a similar argument:

It is suggested that, as far as the High Court provisions in section 486A of the Migration Act are concerned, these may be unconstitutional as they restrict the jurisdiction of the High Court in section 75(v) of the Constitution. Insofar as the jurisdiction in section 75(v) was intended to be a broad power to allow the High Court to deal with substantive matters of justice, it is suggested that these provisions may restrict access to justice in

the High Court.

3. 77 And further:

This question may then be broadened to ask whether the mirror provisions for the Federal Magistrates Court and the Federal Court may not also restrict access to justice and in some cases leave an applicant with no recourse to the judicial system following their Tribunal decision. The ultimate effect of rigid time limits may again be to force applications in the original jurisdiction of the High Court, further delaying the hearing of cases in that Court. 84

The committee's view

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3.78 The committee repeats the views expressed in its report on the Judicial Review Bill in relation to time limits and makes no additional comments on this issue. 85 However, the committee acknowledges that its recommendation from that report with respect to actual (as opposed to deemed) notification of decisions86 has been taken up by the Federal Government in the current version of the Bill.

Constitutional validity of a 'purported privative clause decision'

3. 79 The background to the extended definition of privative clause matters is well known to the committee and was canvassed in detail in the committee's inquiry into the Judicial Review Bill. 87 The committee does not propose to examine this matter again in detail in the current inquiry. The next section of the report will deal briefly

with the main issues raised in relation to privative clauses in this inquiry.

82 Submission 2, p. 4.

83 Submission 21, p. 11.

84 Submission 21, pp 11-12.

85 Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, p. 22.

86 Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, pp 24 and 30.

87 Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bil/2004, June 2004, pp 3-5 and pp 14-16.

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3.80 Several submissions and witnesses objected to the perceived further restriction on the ability of applicants in migration matters from accessing judicial review, particularly through the Bill's use of privative clauses. 88

3.81 For example, the Migration Institute of Australia contended that:

.. . the proposed definition of a purported decision is so broad as to reduce the ability for people to know that a reviewable decision or action has been made and they need to lodge an application for review, and ... this may lead to lodgement of 'precautionary appeals' leading to a conflict between the ability to adhere to strict time limits and the prohibition on appealing if there is 'no reasonable prospect of success' linked to personal costs. 89

3.82 Many others agreed with this assessment. At the hearing, Professor Mary Crock from the Law Council expressed strong ideological opposition to the use of the privative clause device:

The High Court of Australia has made it patently clear that the Australian Constitution contains guarantees that cannot be ousted by parliamentary enactment. These guarantees are contained in sections 73 and 75 of the Constitution. They provide that the judicial power in Australia is to be exercised by a federal court, known as the High Court, and that as an irreducible minimum the High Court is to have the power or jurisdiction to review actions taken by an officer of the Commonwealth. These provisions embody the notion that the rule of law in this country involves the power of parliament and of the executive being balanced by the oversight of the court. This means that if a court says that either legislation or administrative action stands outside the law it should be subject to judicial correction. In its reference to purported decisions-! know very few decisions are caught by this-the legislation attempts to preclude the review of decisions affected by the jurisdictional error, and it says that in the legislation. I find it hugely distressing that parliament would purport to put words like that in an enactment given the terms of the Constitution.

90

3.83 The Law Council's submission also raised an interesting point regarding the privative clause provisions in the Bill: On one level, there seems to be an irony in introducing provisions to limit judicial review that will encourage litigation: once again the High Court

will be asked inevitably to rule on the effect of the amendments. On the other hand, it is difficult to see that the amendments will have any effect at all on the ultimate jurisdiction asserted by the High Court (and through it, the lower Federal Courts). 91

88 See, for example, Legal Services Commission of South Australia, Submission 13 .

89 Submission 8, pp 6-7.

90 Committee Hansard, 13 April2005, p. 9.

91 Submission 21, p. 13 .

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3.84 ALHR agreed that any '(f)urther tinkering with the privative clause is likely to lead to further complex litigation to tease out the actual effect of the privative clause'92 and that 'there will be no marked "efficienct in moving the cases as it is clear that the High Court's jurisdiction cannot be ousted'. 3

3.85 Professor Williams and Dr Saul expressed a similar viewpoint:

... the application of privative clauses to migration decisions involving noncitizens undermines the principle of equal treatment that is fundamental to the rule of law and the common law, and may infringe the human right to freedom from non-discrimination. The idea of equality before the law demands that Australia's justice system, including the basic right of judicial review of administrative action, must extend to all persons within Australia'sjurisdiction, regardless of their status.94

3.86 The committee also received evidence arguing that the reference to a 'purported privative clause decision' in the Bill is contradictory in seeking to regulate something that is not a decision at all. For example, in their submission, Professor George Williams and Dr Ben Saul contended that the amendment might be invalid because it might not be seen as a 'law' that could be enacted by Parliament under

section 51 of the Constitution. 95

3.87 At the hearing Professor Williams elaborated on this point:

I am concerned about the very idea of providing a legal framework for the regulation of a · purported decision. It seems to be a strange thing to do indeed, within a legal framework that is meant to be compliant with the rule of law, to seek to regulate something which, by its very nature, is illegal or an unlawful decision. In terms of the constitutional problems that might

flow from that, significantly this does not make such decisions unreviewable. If it did, I think it is very likely that the bill would have been unconstitutional as a result of the decision in Plaintiff 8157, but clearly a sensible decision has been made not to go down that path. However, there

are further, less likely problems with the legislation, even in its current form. The mere idea of regulating a purported decision may give rise to a question about whether the regulation is a law at all, as is required by section 51 of the Constitution. There are some fairly oblique references to

that idea in that recent High Court decision. 96

3.88 However, at the hearing, Mr Wayne Martin QC from the ARC expressed the view that the insertion of the term 'purported privative decision' in the Bill was purely mechanical:

92 Submission 19, p. 7.

93 Submission 19, p. 7.

94 Submission 14, p. 4.

95 Submission 14, p. 4.

96 Committee Hansard, 13 April 2005, pp 29-30.

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My own view .. .is that I thought this ground was covered pretty much by the bill that lapsed with the parliament last year. My impression of it was that the effect of the introduction of the definition was largely mechanical and procedural to overcome what might have been an unintended consequence of the High Court's decision in Sl57. As I read the provisions of the bill-and I may have misread them-both that bill and, to the extent the provisions have been carried forward in this bill, this one, it was not intended by that definition to attempt to, as it were, resurrect the scope of the privative clause that was emasculated in S157 but, rather, to apply that decision to some of the mechanical provisions of the bill relating to time limits and so forth. 97

3.89 A representative from DIMIA informed the committee that it had sought legal advice on the constitutional validity of the Bill and also argued that the insertion of the privative clause provisions was procedural, rather than a restriction on judicial review:

... the advice that we had is that it would be constitutionally valid. It is on the basis that it does not change the grounds of review. It deals primarily with, and its purpose and focus are on. the procedural aspects. The Migration Act in its current form has a series of time limits and provides for the exclusive jurisdiction of the federal courts in relation to privative clause decisions. The effect of the High Court's decision is that the privative clause decision, in effect, is a decision that is not tainted by jurisdictional error. The consequence is that, in order for the court to ascertain whether or not the person is within time limits, they have to conduct a complete judicial review. The purpose behind the amendment relating to a purported

decision is to say that, in effect, any action or decision that is taken or purportedly taken under the Migration Act comes within those procedural requirements, such as the time limits, the primary decision restriction and also the exclusive jurisdiction of the federal courts. 98

3.90 Further, the representative noted that his understanding was that there was far greater confidence that the current version of the Bill is constitutionally valid as opposed to the Judicial Review Bill, due to amendment of the current Bill to include this committee's recommendation from its previous report: 99

In the form that is in the bill, of course, the government has taken up the committee's recommendation in relation to the earlier proposed provision that operated from deemed notification. This is from actual notification. So I understand that there is far greater confidence that this is constitutionally valid because of that actual notification provision. You will not have the situation where, potentially under the deemed notification provision, a person may not have been aware or they may have only become aware of the decision somewhere within that broadly 84-day period. Here they will

97 Committee Hansard, 13 April 2005, p. 18 .

98 Committee Hansard, 13 April 2005, p. 39.

99 See further Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, p. 30.

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in fact have the 84-day period from actually knowing about the decision and having the reasons for that decision in which to seek judicial review. 100

The committee's view

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3.91 The committee accepts DIMIA's assertion that the purpose of the 'purported privative clause' device in the Bill is merely procedural, seeking only to apply time and jurisdiction limits to 'purported' decisions under the Migration Act and not bar review of such decisions. The committee repeats the views expressed in its report on the Judicial Review Bill in relation to privative clauses and makes no additional comments on this issue.

Possible alternative approaches

3.92 Many submissions and witnesses acknowledged the attempt in the Bill to improve the efficiency of court processes in relation to migration matters. For example, Ms Kidson from QPILCH, applauded the proposed changes to the structure of the jurisdiction of the courts:

We have said that we have no objection to [giving the High Court power to remit on the papers], provided that safeguards are in place--provided, for example, that the High Court retains the power to hear old submissions if it believes it is necessary and if one of the parties makes a case for that. We have stated that we have no in-principle objection to the Federal Magistrates Court becoming the primary judicial jurisdiction for hearing

cases-again, provided it retains the discretion, which under the bill it currently does, to refer complex cases to the Federal Court.101

3.93 Ms Suhad Kamand from the Immigration Advice and Rights Centre agreed that the Bill's aim has some merit:

We share the concerns expressed by those promoting the bill regarding the high and increasing volume of migration litigation and the delays in, and burdens on, the migration determination process which result. We share the objective of increasing efficiency and expedition in the migration

determination process, but only to the extent that the quality, fairness, integrity and constitutionality of that determination are preserved.102

3.94 However, the committee received considerable evidence expressing strong opposition to the way in which the Bill seeks to achieve this aim. This evidence pointed to the failure to address or seek to implement structural reforms which are deemed to be at the core of problems in the use of the judicial review process in Australia, particularly in relation to migration matters.

103

100 Committee Hansard, 13 April2005, pp 39-40.

101 Committee Hansard, 13 April2005, p. 22.

102 Committee Hansard, 13 April2005, p. 25.

103 For example, see R.IT..C, Submission 23, p. 3.

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3.95 Many also criticised the Federal Government's continued failure to release the Penfold Report for scrutiny and comment, particularly in light of the fact that the Report contains the evidence and findings which form the basis of the Bi11. 104 In its report on the Judicial Review Bill, this committee urged the Federal Government to release the Penfold Report for public comment before seeking to further amend the Migration Act. 105 The report also stated that the committee would have been in a better position to comment on the Judicial Review Bill if the Penfold Report had been available at the time of its inquiry. 106 The committee reiterates its concerns here.

3.96 The Law Society of South Australia argued that, although the Federal Government has refused to make available the Penfold Report, a few presumptions can be made from the Bill:

In seeking to reduce the number of matters before the courts, the government response has focussed on implementing barriers and restrictions on the judicial process. It has failed to consider the structural reasons behind the problem. In particular, it has failed to introduce measures designed to improve the quality and transparency of primary decision making. It has also failed to address the consistency, quality and transparency of both the Migration Review Tribunal and the Refugee Review Tribunal. Further, the government has made no proposals designed to strengthen the availability of legal advice and assistance, whether pro bono or otherwise, to applicants before the tribunals leaving some of the most vulnerable members of society to attempt to represent themselves in these matters. 107

3.97 The committee notes advice by a representative of the Attorney-General's Department at the hearing for this inquiry that 'the report was prepared for the government and for the purposes of a cabinet decision and that therefore it would not be released apart from the limited material that has been provided to the cornmittee'.108 However, the committee restates its view that availability of the Penfold Report would have greatly assisted its assessment of the merits and adequacy of the current Bill and its objectives.

3.98 The committee heard that alternative measures to those taken in the Bill would be more successful in addressing the problems relating to judicial review of migration proceedings in Australia. Dr Ben Saul told the committee that:

104 For example, seeMs Debra Mortimer, Public Interest Law Clearing House (Vic) and the Victorian Bar, Committee Hansard, 13 April 2005, p. 34; Refugee and Immigration Legal Centre, Submission 23, p. 3.

105 Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, p. 12.

1 06 Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bill 2004, June 2004, p. 30.

107 Submission 4, p. 1.

108 Committee Hansard, 13 April2005, p. 38.

272

... we take a very different approach to how you should respond to this problem of judicial review being manipulated. Rather than taking a punitive approach by closing down avenues of appeal and imposing cost orders, we think it is preferable instead to address the root causes of why so many applicants seem to be using judicial review as a means of seeking asylum but yet being quite unsuccessful.

... maintaining a system of mandatory detention and detaining people while their asylum applications are being processed clearly creates an incentive for detainees to try to get out of detention in any way possible, including through judicial review applications, when they do not have much hope of succeeding.109

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3.99 Many argued that the Bill sought to achieve its objectives at the expense of fundamental rights and access to justice. For example, Ms Suhad Kamand from the Immigration Advice and Rights Centre told the committee that:

We have strong concerns regarding the potentially far-reaching effect of the bill on access to migration legal services and the likelihood that it will result in an increase in highly vulnerable socioeconomic groups, often with poor English language skills and little if any understanding of the Australian migration law and processes, representing themselves in

complex migration litigation. We are concerned that, while having the potential to significantly decrease access and equity in relation to migration litigation or migration legal services, the bill does little to ensure that its stated objectives of increasing efficiency and minimising unmeritorious claims will be achieved. Indeed it is our view that the measures the bill seeks to put in place will defeat these objectives by decreasing access to sound legal advice and representation, prompting a rise in unrepresented litigants and inviting judicial scrutiny at the application and intent of the ill­ defined, onerous and far-reaching obligations and penalties proposed.110

3.100 The Law Council submitted that 'the Bill will not succeed in its stated aims, but is likely to make a bad situation worse'. 111 In particular:

.. . the Law Council is concerned that problems in one area of migration decision making - refugee appeals - are driving reforms that impact on the rights of all migration applicants, stifling opportunities to challenge decisions and hampering the courts in their development of immigration jurisprudence.

It is the Council's view that Parliament has again been invited to focus once again on the wrong end of the process: trying to stifle review instead of addressing the question of why so many appeals are being lodged. 112

109 Committee Hansard, 13 April2005, p. 29 .

110 Committee Hansard, 13 April 2005, p. 25 .

111 Submission 21, p. 7.

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3.101 At the hearing, Professor Mary Crock, representing the Law Council, was highly critical of the approach taken in the Bill:

It is our view that this legislation is contemptuous of the notion of the separation of powers in this country. Like the migration legislation reform enactments that have preceded it, it is ill-conceived, of questionable constitutionality and is likely to have effects that are unintended and are detrimental to both the legal process and the rule of law in Australia. This bill is yet another attempt to oust the judicial review of migration decisions, but it goes further than that. It touches the judicial process generally in the federal area. Whereas on the last occasion the attack was on the courts themselves, this time the approach is two-pronged and involves an attack on the courts and an attempt to discourage and penalise those in the community responsible for bringing judicial review applications. 113

3.102 Further, Professor Crock stated that Australiahas 'one of the smallest bodies of refugee claims in the world' yet also has 'one of the most astonishing proportionate load of cases in the courts'. 114 She argued that efforts should be made to determine why this the case:

Perhaps we need to stand back and look more holistically at the system and what is going wrong.

If you have people who are not being looked after and they are not being captured, if you like, by people who are going to look after their cases properly, these people will end up making unmeritorious--or apparently unmeritorious-applications. But in fact they are people who are in dire need of assistance and who have good claims that have never been properly articulated. It is a systemic failure that this is really not addressing. That is the point I would like to make. 115

3.103 Mr Craig Lenehan from HREOC expressed a similar view:

The question that arises for us is: where does the problem really lie? That is an issue that is raised not just in our submission but in other submissions. Do you answer that problem by cutting off people's rights to bring cases that may very well result in them being awarded protection visas or do you look at more fundamental aspects of the problem, which include the matter that you have referred to which is that you have a bunch of unrepresented litigants in the highest court in the land dealing with legal issues that are not only beyond their comprehension but also in a language that they may not understand. That is one issue. 116

112 Submission 21, p. 6.

113 Committee Hansard, 13 April2005, p. 9.

114 Committee Hansard, 13 April2005, p. 12.

115 Committee Hansard, 13 April2005, pp 12 and 13.

116 Committee Hansard, 13 April2005, p. 5.

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3.104 Further, Mr Lenehan emphasised that the sound approach to addressing the problems in relation to judicial review of migration matters, 'particularly when you are dealing with fundamental rights, [is] not to rush in a solution which does not first look to what are the real problems here and what are their causes.' 117

3.105 Professor George Williams and Dr Ben Saul submitted that other alternatives should be pursued:

... the need for the legislation would be substantially reduced if other alternatives were fust pursued: improving primary decision-making; enhancing the RRT's independence; increasing legal aid funding to improve the quality of migration advice about judicial review; removing restrictive interpretations of the refugee definition, and establishing complementary protection as a new migration status; and abolishing mandatory detention. 118

3 .1 06 At the hearing, a representative from D IMIA, in response to questioning about the Bill's misguided focus, described some of the other measures employed by that department:

The department-and it is probably fair to say that the committee or various parliamentary committees-have looked at various aspects of immigration decision making. We certainly do have extensive examination of the quality of our primary decision making. We take seriously the outcomes of the merits review tribunals, look at ways of improving and watch very closely the decisions that are made by the Federal Court. We factor that into our training and have quite a comprehensive, good decision-making training process that takes account of all those aspects. 119

The committee's view

3.107 The committee acknowledges concerns in relation to the Bill's perceived failure to adequately address structural and policy problems associated with judicial review of migration matters. The committee agrees that addressing some of these problems in the ways suggested by submissions and witnesses may have considerable

merit. In particular, the committee recognises that it may be more effective to address the causes of 'unmeritorious' litigation as opposed to concentrating solely on its effect.

3. 108 However, the committee considers that the Bill represents one of the strategies that may be helpful in streamlining judicial review of migration litigation, forming part of a broader strategy aimed at addressing some of the problematic issues at the heart of migration law in Australia. Therefore, subject to its earlier recommendations, the committee considers that the Bill should be passed by the Senate.

117 Committee Hansard, 13 April2005, p. 5.

118 Submission 14, p. 3.

11 9 Committee Hansard, 13 April2005, p. 48.

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Recommendation 3

3.3 Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.

Senator Marise Payne Chair

276

ADDITIONAL COMMENTS

LABOR SENATORS

1.1 Labor Senators acknowledge that the committee's recommendation from its inquiry into the Judicial Review Bill in 2004 with respect to actual notification of decisions has been taken up by the Federal Government in the current version of the Bill. Labor Senators endorse the Federal Government's reconsideration of its approach to this issue.

1.2 However, Labor Senators remain concerned about several issues raised both in the course of the committee's current inqurry and its previous inquiry, particularly in relation to time limits and the constitutional validity of the Bill. Labor Senators again note that the Bill may be unconstitutional insofar as it imposes non-discretionary, absolute time limits for the judicial review of migration decisions, including those decisions suffering from serious jurisdictional error. Therefore, Labor

Senators reiterate their previous concerns in relation to such constitutional validity issues.'

1.3 Labor Senators also express their disappointment at the Federal Government's continued failure to release the Penfold Report for scrutiny and comment, particularly in light of the fact that the findings of that Report form the basis of the Bill. Once again, access to the Penfold Report would have been instrumental in allowing the committee to more adequately assess the need and appropriateness of the Bill.

Senator the Hon Nick Bolkus Deputy Chair

See further Legal and Constitutional Legislation Committee, Provisions of the Migration Amendment (Judicial Review) Bil/2004, June 2004, p. 31.

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278

DISSENTING REPORT

Senator Andrew Bartlett On behalf of the Australian Democrats

1.1 After reviewing the evidence and submission presented to this inquiry, the Australian Democrats' view is that the Bill should be opposed.

1.2 The Democrats agree with the majority of witnesses to the inquiry that there is no valid justification for the Bill. The number of migration cases before the Federal and High Courts continues to decline from the considerable increase in migration case numbers in 2002 -2003. This peak in migration applications was due to the large increase in unauthorised arrivals between 1999 and 2001. The number of unauthorised arrivals has fallen markedly since then. Also evident is the fact that the 2002-2003 increase in migration cases was also due to the policy measures pursued by the Government, especially in relation to decisions not to allow representation actions in migration cases. Also significant is the Government's continued refusal to publish the findings and recommendations of the Penfold Report, which the Government asserts form the basis of the Bill.

1.3 In particular, the case has not been made for introduction of the radical proposal to award cost orders against any person deemed to have encouraged an unmeritorious application for review of a migration decision. The Democrats share the concerns raised by many witness and submissions that such provisions are in effect an attempt to discourage lawyers, volunteers and other Australians who have a

legitimate role in assisting refugees and migrants.

1.4 Similarly, the Democrats consider that provisions seeking to restrict judicial review of migration decisions by the imposition oftime limits are inappropriate and unnecessary given the courts' current powers to manage their caseload and to screen out unmeritorious applications.

1.5 The proposed privative clause is equally problematic as is the Bill's reference to 'purported privative clause decisions'. Serious doubts have been raised over the constitutional validity of the latter as well as over the imposition of time limits restricting judicial review of migration decisions. Moreover, these provisions will

compound the complexity already inherent in the Migration Act and provide even more grounds for appeals. This is at odds with the Bill's stated aim of reducing the number of migration appeals and the associated cost and delay.

1. 6 The Bill is based on a false premise and is unworkable and potentially dangerous. As the Democrats stated in respect of the earlier Migration Amendment (Judicial Review) Bill2004:

Once we start limiting access to the courts for particular sections of the community, we are creating a legal system that does not hold everyone equal

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in the eyes of the law. It is imperative that those seeking asylum are not denied access to judicial review, particularly given the legitimate concerns about the adequacy of the existing determination process. We should be working harder to ensure that justice is delivered rather than subverted.

These comments apply equally to the Bill and now have even more force given the recent injustices wrought by the Government against its own citizens who have the misfortune to become embroiled in its immigration regime.

1. 7 Consequently, the Democrats believe that the Bill should not be passed- even if it is amended in accordance with the Committee's recommendations. The Democrats appreciate the reasons for the Committee's recommendations for a report to Parliament on the operation of the Bill and for the sun setting of the summary dismissal powers. However, the fact remains that no real evidence has been presented which warrants the enactment of the Bill in the first place.

1.8 Notwithstanding the above, if the Bill is to be passed by the Parliament, it will be critical for the Committee's recommendations to be implemented. In addition, the Democrats believe that it is crucial that the Bill as a whole be subject to a sunset clause. The significant implications of this Bill for the courts, the legal profession, the rule of law and the lives of individuals at risk of persecution and seeking Australia's protection make it essential that the operation of the Bill be fully examined and

debated by the Parliament if it is to continue.

Recommendation 1: That the Bill be opposed.

Recommendation 2: That, if the Bill is not to be opposed, it be amended in accordance with the Committee Recommendations.

Recommendation 3: That, if the Bill is not to be opposed, it be amended to include a sunset clause which provides that the legislation will cease to have effect three years after it commences.

Senator Andrew Bartlett Australian Democrats

280

APPENDIX!

SUBMISSIONS RECEIVED

Refugee Advocacy Services of South Australia

2 Co-ordination Committee of the Refugee Action Coalition NSW

3 United Nations High Commissioner for Refugees

4 The Law Society of South Australia

5 Federation of Ethnic Communities' Councils of Australia (FECCA)

6 Administrative Review Council

7 Refugee Council of Australia

8 The Migration Institute of Australia

9 Dr Katherine Biber

10 Immigration Advice and Rights Centre

11 Queensland Public Interest Law Clearing House and South Brisbane Immigration and Community Legal Service

12 National Pro Bono Resource Centre

13 Legal Services Commission of South Australia

14 Professor George Williams and Dr Ben Saul

15 Public Interest Law Clearing House (Vic) and the Victorian Bar

16 Amnesty International Australia

17 Human Rights and Equal Opportunity Commission

1 7 A Human Rights and Equal Opportunity Commission

18 Refugee Action Collective (Brisbane)

19 Australian Lawyers for Human Rights

20 The New South Wales Bar Association

21 Law Council of Australia

281

22 Victoria Legal Aid

23 Refugee and Immigration Legal Centre

24 The Law Society of Western Australia

25 Department of Immigration and Multicultural and Indigenous Mfairs

282

APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE

Canberra, Wednesday 13 April 2005

Human Rights and Equal Opportunity Commission

Mr Craig Lenehan, Deputy Director, Legal Services

Mr Jonathon Hunyor, Senior Legal Officer, Legal Services

Law Council of Australia

Mr Peter Webb, Secretary-General

Associate Professor Mary Crock, Member, International Law Section

Administrative Review Council

Mr Wayne Martin QC, President

Queensland Public Interest Law Clearing House (QPILCH) and South Brisbane Immigration and Community Legal Service (SBICLS)

(Teleconj(erence)

Ms Nitra Kidson, RAILS Project Coordinator (QPILCH)

Mr Robert Lachowicz, Coordinator and Principal Solicitor (SBICLS)

Immigration Advice and Rights Centre

M s Suhad Kamand, Director/Principal Solicitor

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Professor George Williams and Dr Ben Saul

(Telecoriference)

Public Interest Law Clearing House (Vic) and the Victorian Bar

(Teleconference)

Ms Debbie Mortimer SC, Member of the Victorian Bar

Attorney-General's Department

Ms Sandra Power, Assistant Secretary, Civil Jurisdiction and Federal Courts Branch, Civil Justice Division

Ms Deborah Turner, Principal Legal Officer, Civil Jurisdiction and Federal Courts Branch, Civil Justice Division

Department of Immigration and Multicultural and Indigenous Affairs

Mr Douglas Walker, Assistant Secretary, Visa Framework Branch

Ms Cassandra Ireland, Principal Legal Officer, Legal Policy Section

284

The Senate

Legal and Constitutional Legislation Committee

Provisions of the National Security Information

Legislation Amendment Bill 2005

May 2005

285

© Commonwealth of Australia 2005

ISBN 0 642 71 511 4

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra

286

MEMBERS OF THE LEGISLATION COMMITTEE Members Senator Marise Payne, Chair, LP, NSW Senator the Hon. Nick Bolkus, Deputy Chair, ALP, SA Senator Brian Greig, AD, W A* Senator Joseph Ludwig, ALP, QLD Senator Brett Mason, LP, QLD Senator Nigel Scullion, CLP, NT

Substitute Member * Senator Aden Ridgeway, AD, NSW to replace Senator Brian Greig for matters relating to the Indigenous Affairs portfolio * Senator Andrew Bartlett, AD QLD to replace Senator Brian Greig for the inquiry

into the provisions of the Migration Litigation Reform Bi112005.

Participating Members Senator the Hon. Eric Abetz, LP, T AS Senator G. Barnett, LP, TAS Senator A. Bartlett, AD, QLD (for DIMIA) Senator Mark Bishop, ALP, WA Senator George Brandis, LP, QLD Senator Bob Brown, AG, TAS SenatorGeoffBuckland, LP, QLD Senator George Campbell, ALP, NSW Senator Kim Carr, ALP, VIC Senator Grant Chapman, LP, SA Senator the Hon R Colbeck, LP, T AS Senator Stephen Conroy, ALP, VIC Senator Alan Eggleston, LP, WA Senator Christopher Evans, ALP, WA Senator the Hon. John Faulkner, ALP, NSW Senator Alan Ferguson, LP, SA Senator Jeannie Ferris, LP, SA Senator Brian Harradine, IND, T AS

Secretariat Mr Owen Walsh Secretary

Senator John Hogg, ALP, QLD Senator Gary Humphries, LP, ACT Senator Linda Kirk, ALP, SA Senator Susan Knowles, LP, W A Senator Ross Lightfoot, LP, WA Senator Kate Lundy, ALP, ACT Senator Sue Mackay, ALP, TAS Senator Julian McGauran, NP A, VIC Senator Jan McLucas, ALP, QLD Senator Kerry Nettle, AG, NSW Senator Robert Ray, ALP, VIC Senator Aden Ridgeway, AD, NSW Senator the Hon. Nick Sherry, ALP, TAS Senator Ursula Stephens, ALP, NSW Senator Natasha Stott Despoja, AD, SA Senator Tsebin Tchen, LP, VIC Senator John Watson, LP, TAS

Ms Julie Dennett Principal Research Officer Ms Sophie Power Ms Marina Seminara Ms Judith Wuest

Suite Sl.61 Parliament House

Principal Research Officer Executive Assistant (to April2005) Executive Assistant (from May 2005)

Telephone: (02) 6277 3560 Fax: (02) 6277 5794 E-mail: legcon.sen@aph.gov.au

iii 287

288

TABLE OF CONTENTS

Members of the Legislation Committee

Abbreviations

CHAPTERl INTRODUCTION

Background

Overview of the Bill

Conduct of the inquiry

Acknowledgement

Note on references

CHAPTER2 OVERVIEW OF THE BILL

Background to the Bill

Key provisions of the Bill

CHAPTER3 ISSUES RAISED BY THE BILL

Purpose and application of the Bill

Power to stay proceedings

Restrictions on the court's discretion

Security clearances

Other issues

Conclusion

ADDITIONAL COMMENTS AND POINTS OF DISSENT BY THE AUSTRALIAN DEMOCRATS

APPENDIX I

SUBMISSIONS RECEIVED

APPENDIX2 WITNESSES WHO APPEARED BEFORE THE COMMITTEE

289

iii

v

1

1

3

3

3

3

7

7

7

13

16

26

33

46

49

53

55

290

the Act

ADJRAct

AFP

ALRC

ABBREVIATIONS National Security Information (Criminal Proceedings) Act 2004

Administrative Decisions (Judicial Review) Act 1977

Australian Federal Police

Australian Law Reform Commission

ALRC report Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC Report 98, May 2004

AMCRAN

ASIO

ASIOAct

the Bill

Australian Muslim Civil Rights and Advocacy Network

Australian Security Intelligence Organisation

Australian Security Intelligence Organisation Act 1979

National Security Information Legislation Amendment Bill2005

the Criminal Code Criminal Code Act 1995

Criminal Bill

Criminal Bill report

HREOC

ICCPR

I GIS

Proceedings National Security Information (Criminal Proceedings) Bill 2004

Proceedings Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings)

(Consequential Amendments) Bil/2004, 19 August 2004.

Human Rights and Equal Opportunity Commission

International Covenant on Civil and Political Rights

the Law Council

Inspector-General of Intelligence and Security

Law Council of Australia

Migration Act

PIAC

us

Migration Act 1958

Public Interest Advocacy Centre

United States

291

292

CHAPTER!

INTRODUCTION

Background

1.1 On 16 March 2005, the Senate referred the provisions of the National Security Information Legislation Amendment Bill 2005 (the Bill) to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 11 May 2005.

Overview of the Bill

1.2 The Bill seeks to amend the National Security Information (Criminal Proceedings) Act 2004. That Act aims to prevent the disclosure of information in federal criminal proceedings where the disclosure is likely to prejudice national security. The Bill will extend the operation of the Act to include certain civil proceedings.

Conduct of the inquiry

1.3 As mentioned above, the Bill was referred to the Committee on 16 March 2005 . Details of the inquiry, the Bill and associated documents were immediately placed on the Committee's website. The Committee immediately wrote to over 90 organisations and individuals to invite submissions by 1 April2005 . The Committee

also advertised the inquiry in The Australian newspaper on 23 March 2005 .

1.4 The Committee received 16 submissions, and these are listed at Appendix 1. Submissions were placed on the Committee' s website for ease of access by the public.

1.5 The Committee held a public hearing in Canberra on 13 April2005. A list of witnesses who appeared at the hearing is at Appendix 2 and copies of the Hansard transcript are available through the Internet at http://aph .gov.au/hansard.

Acknowledgement

1.6 The Committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1. 7 References in this report are to individual submissions as received by the Committee, not to a bound volume. References to the Committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard transcript.

293

CHAPTER2

OVERVIEW OF THE BILL

Background to the Bill

2.1 The Bill seeks to extend the operation of the National Security Information (Criminal Proceedings) Act 2004 (the Act) to include certain civil proceedings. The National Security Information (Criminal Proceedings) Bill 2004 (Criminal Proceedings Bill) was the subject of inquiry and report by this Committee in August 2004.1

2.2 In that inquiry, the Committee outlined the background to the proposed national security regime set out in the Criminal Proceedings Bill. This included a discussion of the Australian Law Reform Commission's (ALRC) inquiry into the protection of classified and security sensitive information. The ALRC's report was titled Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC report).2 A discussion of the ALRC's inquiry and report is

contained in the Committee's report in relation to the Criminal Proceedings Bill.3 Essentially, the ALRC supported the introduction of a 'National Security Information Procedures Act to govern the use of classified and security sensitive information in all stages or proceedings in all courts and tribunals in Australia.'4 The ALRC report gave consideration to civil proceedings as part of its inquiry. However, as with the regime relating to criminal proceedings, there are significant points of departure between the ALRC's legislative proposal and this Bill. 5 Key departures will be considered further in the next chapter.

Key provisions of the Bill

2.3 The Bill broadly adopts the process for federal criminal proceedings under the Act. A broad outline of the key provisions of the Bill follows. 6

2.4 The Bill applies to civil proceedings in any Australian court. Under clause 15A, a civil proceeding is defmed to mean 'any proceeding in a court of the

Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (Criminal Proceedings Bill report), 19 August 2004.

2 ALRC 98, May 2004.

3 Criminal Proceedings Bill report, especially pp . 4-7.

4 ALRC, Submission 6, p. 3.

5 ALRC, Submission 6, p. 1.

6 For a further detailed explanation see the Explanatory Memorandum to the Bill.

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Commonwealth, State or Territory, other than a criminal proceeding'. It includes all stages of the civil process, including discovery and interlocutory proceedings.

2.5 The Bill's operation is triggered once the Attorney-General has issued a notice to the parties and to the court under clause 6A. Such a notice can be given at any time during the proceeding.

2.6 Item 13 amends the general powers of a court in section 19 of the Act to extend to the powers of a court in relation to civil proceedings. In particular, the court retains its power to determine that the proceedings should be stayed. A 'stay' is an order made by a court suspending all or part of a proceeding. For example, a court may order that a proceeding be stayed where there is no other procedural step that can be taken by the court to ensure a fair trial. 7

2. 7 The Bill then inserts a new Part 3A into the Act to provide for the protection of national security information in relation to civil proceedings.

2.8 Clause 38D imposes an obligation on a party in a civil proceeding to notify the Attorney-General if he or she expects to introduce into those proceedings information that relates to, or the disclosure of which may affect, national security. This includes information that may be introduced through a document, a witness's answer to a question or the presence of a witness.

2.9 Under clause 38F, upon notification, the Attorney-General will consider the information and determine whether disclosure of the information is likely to prejudice national security. If so, the Attorney-General may issue a certificate which either prevents the disclosure of the information or allows the information to be disclosed in a summarised or redacted form. The certificate will remain in force until it is revoked by the Attorney-General; or until the court makes an order in relation to the disclosure of information.

2.10 The Bill then provides for certificates to be considered at a closed hearing of the court before the substantive hearing commences. If the Attorney-General issues a certificate after the substantive hearing has begun, the court must adjourn the hearing and hold a closed hearing. Clause 38I sets out the procedures and requirements for closed hearings.

2.11 Clause 38L then provides for the court to make orders in relation to the disclosure of information the subject of the certificate. Under subclause 38L(7), the court considers whether there would be a risk of prejudice to national security if the information were disclosed or disclosed otherwise than in accordance with the Attorney-General's certificate. The court must also consider whether the making of the order for the exclusion of information or a witness would have a substantial adverse effect on the fairness of the hearing. The court may also consider other

7 See Butterworths Encyclopaedic Australian Legal Dictionary, 2004; see also Jago v District Court of New South Wales (1989) 168 CLR 23.

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relevant matters. However, under subclause 38L(8), the court must give greatest weight to the national security considerations.

2.12 Clause 38M provides for the court to give reasons to the parties and their legal representatives for its decision to make an order for admitting, excluding or redacting the information or excluding a witness. The Attorney General, if he or she was represented at the closed hearing, can challenge the proposed publication of the statement of reasons to ensure that it does not disclose information which is prejudicial to national security.

2.13 Subclause 381(5) provides that the court must make a record of the closed hearing. Under subclause 381(1), this record can be disclosed to self-represented parties or legal representatives that have been security cleared to the level considered appropriate by the Secretary of the Attorney-General's Department. Subclause 381(7) allows the Attorney General, if he or she was represented at the closed hearing, to request that the record be varied to ensure that it does not disclose information which is prejudicial to national security to security cleared parties or their legal representatives.

2.14 The Bill also requires certain parties to the proceedings to be security cleared in certain circ*mstances. Clause 39A of the Bill sets out security clearance requirements in relation to civil proceedings.

2.15 The Bill would insert a number of offences into the Act in relation to disclosure of national security information in civil proceedings (clauses 38F to 38G). These offences are similar to those provided for under the Act in relation to criminal proceedings.

2.16 Part 2 of the Bill contains amendments to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and the Judiciary Act 1903. Among other things, the amendments to the ADJR Act limit the jurisdiction of courts to review a decision of the Attorney-General (or appointed Minister) to issue a notice that the Act

applies or a decision to issue a certificate. The Bill also amends section 39B of the Judiciary Act 1903 to ensure that the court that is conducting the substantive hearing in a civil proceeding is also able to deal with any judicial review of the certificate or the notice decision.8

Key differences compared to criminal proceedings regime

2.17 As noted earlier, the Bill broadly adopts the process for federal criminal proceedings under the Act. However, the Bill also departs from that process in some ways, due to the different nature of civil proceedings. The key departures are summarised below.

8 Explanatory Memorandum, pp. 4-5.

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• The Attorney-General may appoint a Minister to perform the

Attorney-General's functions under the Act where the Attorney-General is a party to the proceeding. Provisions for the appointment of alternative Ministers do not apply to federal criminal proceedings because the DireCtor of Public Prosecutions will invariably be a party to the proceedings (clause 6A)). 9

• The Attorney-General or an appointed Minister (rather than the prosecutor) gives written notice to the parties and court that the Act applies to a civil proceeding (subclause 6A(l)).

• The permitted circ*mstances for the disclosure of information have been extended (item 12- proposed amendments to section 16).

• The Attorney-General (or appointed Minister) must be given notice of a pre-hearing conference and may attend the conference. This reflects the fact that the Attorney-General may not necessarily be a party to the proceeding and may not be otherwise aware of it (clause 38A).

At any time during a civil proceeding, the Attorney-General (or appointed Minister) may agree with the parties to an 'arrangement' about any disclosure and the court can give effect to such an arrangement by means of a court order (clause 38B).

The security clearance provisions extend to the parties as well as their legal representatives and the assistants ofthe legal representatives (clause 39A).

When advised that a witness may disclose security sensitive information in giving evidence, the court must order a witness to provide a written answer to the question. Upon receiving the answer, the court must adjourn the proceeding and give the answer to the Attorney-General (clause 38E). 10

9 Explanatory Memorandum, p. 8.

10 Explanatory Memorandum, p. 1.

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CHAPTER3

ISSUES RAISED BY THE BILL

3.1 This chapter examines key issues and concerns raised in relation to the Bill, including:

• the purpose and application of the Bill;

• the effect of the court's power to stay proceedings in the context of civil proceedings;

• restrictions on the court's discretion;

• security clearance requirements; and

• other issues.

3.2 Many similar issues were raised and considered during the committee's inquiry into the Criminal Proceedings Bill. These will be considered and noted where appropriate in this chapter. However, as outlined in the previous chapter, a number of adjustments have been made for the regime for civil proceedings. Again, this will be considered and noted in this chapter where relevant.

Purpose and application of the Bill

Purpose of the Bill

3.3 Several submissions queried the need for, and the purpose of, the Bill. 1 For example, Mr Peter Webb from the Law Council of Australia (the Law Council) believed that:

Australian courts have a long history of being able to manage sensitive evidence in all kinds of situations and there is no reason to believe that security sensitive information could not be handled by the courts and by the legal representatives of parties to best effect consistent with the proper administration of justice. 2

3.4 On the other hand, the Australian Security Intelligence Organisation (ASIO) was strongly supportive of the Bill, submitting that:

... the purpose of the Bill is to prevent the disclosure of national security information in certain civil proceedings where disclosure is likely to prejudice national security. It is ASIO's submission that such protection is not currently available in present mechanisms. It is crucial that national

See, for example, the Public Interest Advocacy Centre (PIA C), Submission 7, p. 5; Mr Patrick Emerton, Committee Hansard, 13 April 2005, p. 2.

2 Committee Hansard, 13 April2005, pp 28 and 30; also Submission 15, p. 3.

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security information is appropriately protected in both criminal and civil proceedings. 3

3.5 The ALRC also supported the Bill, noting that it reflects the recommendations of the ALRC report in relation to civil proceedings. 4 However, the ALRC noted that there were some departures 'in detail or tone' between the Bill and the statutory scheme proposed by the ALRC. 5 These departures will be considered where relevant in this chapter.

3.6 In response to the committee's questions as to the need for the regime, the Attorney-General's Department replied that 'it is essential to provide a regime to enable parties to use security sensitive information in civil cases without jeopardising Australia's national security.'6 The Department further elaborated on the need for the Bill:

The existing rules of evidence and procedure do not provide adequate, consistent and predictable protection for information that may affect national security and that may be adduced or othetwise disclosed during the course of proceedings. Public interest immunity as provided for in section

130 of the Evidence Act 1995, provides the Commonwealth with a recognised means to seek protection of security classified information. However, this provision only applies in some jurisdictions and relates to the production in evidence of information or other documents in court. Claims such as production for discovery are not covered by the Act, and unless othetwise legislated, such claims are covered by common law principles, which can result in greater uncertainty than the application of a legislative provision. 7

3. 7 The Department also argued that 'there is no clear authority for redaction (editing or revising a document) or substitution of the information with a summary or stipulation of the facts.' 8 The Department concluded that the Bill would enable 'courts to balance national security considerations a,ainst the ability to use the greatest amount of information possible to be admitted.'

Application of the Bill

3.8 Many submissions noted that the Bill could potentially apply to a wide range of civil proceedings in which the protection of national security information may be at

3 Submission 4, p. l.

4 Submission 6, p. 4; see also Professor George Williams and Dr Ben Saul, Submission 10, p. 1.

5 Submission 6, p. 4.

6 Submission 16, p. 3.

7 Submission 16, p. 3.

8 Submission 16, p. 3.

9 Submission 16, p. 3.

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issue. 10 The Attorney-General's Department submitted that national security information could arise in a 'broad range of civil proceedings such as family law cases, accident compensation, contractual disputes or appeals to the Federal Court from decisions of the Administrative Appeals Tribunal.' 11 At the same time, a representative of the Attorney-General's Department noted that there is only a small number of cases in which national security information may be involved - around half-a-dozen per year. The representative further noted that:

Our information is that some of those proceedings are family law proceedings where one of the parties is an intelligence officer. One of the other areas involves claims ... of compensation that flow from the actions of persons who happen to be security intelligence officers. 12

3.9 However, the Human Rights and Equal Opportunity Commission (HREOq was concerned that the Bill could apply to many proceedings in which remedies for breaches of human rights are in issue. Some of the examples given by HREOC where information relating to 'national security' might arise included:

• proceedings in tort alleging assaults or unlawful conduct during questioning under a warrant issued pursuant to the Australian Security Intelligence Organisation Act 1979 (ASIO Act);

• proceedings seeking orders in the nature of habeas corpus in relation to a 'detention warrant' issued under the ASIO Act;

• proceedings relating to a person's entitlement to a protection visa, or · concerning a decision to cancel a person's visa on character grounds;

• proceedings concerning a decision to detain and deport a non-citizen; and

• proceedings relating to a decision to order the surrender of a passport on 0

ds 13 sec*nty groun .

3.10 Mr Patrick Emerton was also particularly concerned that applications for review of executive decision-making in relation to 'terrorism' would be adversely affected by the Bill. 14 He noted that the Bill could apply to an application to a federal court for a remedy in relation to a questioning or detention warrant issued pursuant to the ASIO Act; or a decision by the Attorney-General to list (or refuse to de-list) an organisation as a terrorist organisation under the Criminal Code. 15 Mr Emerton was

concerned that the Bill could advantage the Commonwealth in such proceedings, and indeed felt that the Bill could make it 'impossible for a person suing the

10 See, for example, ALRC, Submission 6, pp 2-3 .

11 Submission 16, p. 3.

12 Committee Hansard, 13 April2005, p. 36.

13 Submission 12, pp 3-4.

14 Submission 8, pp 4 and 29.

15 Submission 8, p. 5.

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Commonwealth to make out their case.d 6 He concluded that the Bill therefore has the potential to undermine some of the safeguards in anti-terrorism legislation. 17

3.11 Other submissions also raised concerns about the Bill's potential to impact adversely on other anti-terrorism legislation. For example, Amnesty International Australia (Amnesty) was also concerned about the interaction that the Bill may have with the ASIO Act. Amnesty agreed that the regime under the Bill could mean that a person could be unable to effectively challenge a warrant for detention, or to seek an appropriate remedy after their detention. 18

3. 12 However, a representative ofthe Attorney-General's Department responded to this argument as follows:

. . . these bills in fact do little more than provide a formalised procedure for claims of public interest immunity based on national security grounds, I cannot see that the provisions of the bill would impact on the safeguards that are contained in the other terrorism legislation. 19

3.13 Both HREOC and Mr Emerton disagreed with this statement. 20 Indeed, the committee notes that this statement appears to contradict the Department's argument in relation to the need for Bill. In particular, both Mr Emerton and HREOC pointed out a number of differences between the provisions of the Bill and the procedure for claiming public interest immunity under the Evidence Act 1995. For example, HREOC noted that, in claims for public interest immunity, the court retains control of the procedure.21 Both noted that, unlike the Bill, the Evidence Act 1995 does not direct courts as to the weighting to be given to the risk of prejudice to national security.22

3.14 Another issue raised during the committee's inquiry was the application of the national security information protection regime to administrative proceedings in tribunals. The ALRC noted that the Bill would not apply to such proceedings, and recommended that the scheme for protection of national security information should extend to administrative proceedings in tribunals, 'to ensure that such material is dealt with in a secure and consistent manner. '23 The ALRC observed that administrative tribunals can deal with security sensitive information in a range of contexts, including, for example, in proceedings dealing with passport cancellations and visa refusals;

16 Submission 8, p. 27.

17 Committee Hansard, 13 April 2005, p. 3; see also Submission 8, pp 5 and 28-29.

18 Submission 11, pp 15-16; see also AMCRAN, Submission 3, p. 9.

19 Committee Hansard, 13 April 2005, p. 34.

20 Mr Patrick Emerton, Submission 8A, p. 1; HREOC, Submission 12B, p. 6.

21 Submission 12B, p. 6.

22 HREOC, Submission 12B, p. 6; Mr Patrick Emerton, Submission 8A, p. 1.

23 Submission 6, p. 3; see also Professor George Williams and Dr Ben Saul, Submission 10, p. 2.

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denials of a security clearance (or a clearance at the requested level); and denials of requests made under Freedom of Information laws. 24 The ALRC further noted that:

While some of the existing federal tribunals have legislative provisions and/or practices in place to deal with sensitive information, these are not always adequate, or consistent with the more general scheme now laid out in the National Security Information Legislation. 25

3.15 Mr Craig Lenehan from HREOC expressed cautious support for the ALRC's suggestion that there should be a consistent scheme which covers administrative tribunals. In particular, Mr Lenehan observed that there is some inconsistency across federal tribunals as to how national security information is received and dealt with. However, Mr Lenehan cautioned that any such extension should be 'scrutinised closely and should only be implemented in a manner which follows the road map provided by human rights principles.'26

3.16 Others expressed considerable concern about extending the regime to cover administrative tribunals. For example, Dr Waleed Kadous from the Australian Muslim Civil Rights and Advocacy Network (AMCRAN) voiced his objection to any extension:

I do not think they [these laws] should even apply in civil or criminal cases, and I do not see why they should be extended to administrative cases. However, if the law is reformed in such a way that the person who decides what is a national security issue is someone who is distinct from ASIO, someone who is distinct from the AFP and certainly someone who is distinct from the representative arm of government then, yes, I would consider that. 27

3.17 In response to the committee's questions as to whether the regime would be extended to administrative tribunals, the Attorney-General's Department replied:

There are existing regimes which are in place to cover the use of security sensitive information during proceedings in those Commonwealth tribunals where such issues are most likely to arise. These provisions have been specifically tailored to deal with the types of national security information

likely to arise in those proceedings: for example sections 36 and 39A of the Administrative Appeals Tribunal Act 1975? 8

3.18 However, the Department also conceded that:

24 Submission 6, p. 3; see also Professor David Weisbrot, ALRC, Committee Hansard, 13 April 2005, p. 9.

25 Submission 6, p. 3.

26 Committee Hansard, 13 April2005, p. 21.

27 Committee Hansard, 13 April 2005, p. 17.

28 Submission 16, p. 2.

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At a future date and in light of experiences with the operation of these regimes, the Government may revisit the issue of extending the application of the NSI [National Security Information] Act regime to tribunal proceedings. 29

3.19 The committee also sought clarification as to the extent of the Bill's coverage of other civil proceedings. Witnesses noted that the definition of 'civil proceeding' under clause 15A would cover matters such as interlocutory proceedings, discovery and exchange of documents. 30 However, the issue of whether certain types of arbitration or mediation would be covered by the Bill was less clear. 31

3.20 A representative of the Attorney-General's Department responded that court-ordered mediation would be covered, but that other forms of mediation or arbitration would probably not be covered by the Bill. However, the representative also noted that other legislation provides for 'offences of disclosing national security information other than in the course of your duties.'32 Similarly, Professor Weisbrot from the ALRC noted that there is other legislation that provides offences for improperly disclosing classified or security sensitive information, and so in some circ*mstances 'there would be sanctions against divulging that material to a third party for the purposes of dispute resolution. '33

3.21 In answers to questions on notice on this issue, HREOC stated that, having considered the issue further, it believed that 'undesirable ambiguity may arise from the defmition of "civil proceedings" .'34 It noted in particular that the term 'court' in clause 15A could be quite uncertain and could 'potentially lead to wasteful litigation and delays'. HREOC suggested that extending the provisions of the Bill to tribunals, as outlined above, would be one way to avoid this difficulty. 35

The committee's view

3.22 The committee supports the argument that it is necessary to provide a consistent and appropriate scheme for protection of national security information in civil proceedings. In particular, the committee recognises that extension of the national security information protection regime to civil proceedings is desirable to

29 Submission 16, p. 2.

30 See, for example, Professor David Weisbrot, ALRC, Committee Hansard, 13 April 2005, p. 12; Mr Craig Lenehan, HREOC, Committee Hansard, 13 April2005, pp 22-23.

31 Professor David Weisbrot, ALRC, Committee Hansard, 13 April2005, pp 12-13; Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005, pp 22-23; also Mr Patrick Emerton, Committee Hansard, 13 April2005, p. 7.

32 Committee Hansard, 13 April 2005, p. 35.

33 Committee Hansard, 13 April2005, p. 13.

34 Submission 16B, pp 3-4.

35 Submission 16B, pp 3-4.

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ensure consistency of protection across criminal and civil proceedings. However, the committee's support in this context is qualified by its recommendations for amendments to the Bill, which are made later in this report.

3.23 The committee acknowledges the concerns about the Bill's potential impact on the safeguards in anti-terrorism legislation. However, the committee considers that its recommendations elsewhere in this report may help address some of these concerns. The committee also encourages ongoing monitoring by the Attorney-General's Department, and by parliament, of the operation of the regime proposed by the Bill.

3.24 The committee also notes that there may be some uncertainty. as to the Bill's application in some areas, such as arbitration and mediation related to civil proceedings. The committee also acknowledges suggestions that the regime provided for in the Act should be further extended to proceedings in administrative tribunals. In particular, the committee supports suggestions that a consistent, uniform scheme

should apply across all Australian courts and tribunals. However, the committee notes that the Attorney-General's Department will monitor the operation of the regime and may revisit these issues if necessary.

Power to stay proceedings

3.25 Several submissions commented on the provisions of the Bill which would preserve the court's power to stay proceedings under proposed subsections 19(3) and (4)). In particular, some were concerned that a stay of proceedings would have different consequences in civil proceedings compared to criminal proceedings.36 For example, the Law Council noted that it had strongly supported the stay provisions in the context of the criminal proceedings legislation.37 However, in civil proceedings where the Commonwealth is a defendant, Mr Peter Webb from the Law Council noted that:

. . . an unfortunate perception could be created: that a stay of proceedings compelled by difficulties relating to the admission of security sensitive information and ministerial certificates has enabled the government to evade a civil liability for which it might otherwise have been found responsible. 38

3.26 The Law Council was unable to suggest any alternative mechanisms to remove this perception of unfairness. 39 The Law Council conceded that the stay provisions could 'cut both ways'. That is, if the Federal Government were a plaintiff in

36 See, for example, Mr Patrick Emerton, Submission 8, pp 24-25; HREOC, Submission 12, p. 8.

37 Submission 15, p. 2.

38 Committee Hansard, 13 April 2005, p. 28; see also Submission 15, p. 2.

39 Mr Peter Webb, Law Council, Committee Hansard, 13 April2005, p. 29 .

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a civil proceeding, the government could be 'equally frustrated in attempts to pursue civil remedies.'40

3.27 Professor Weisbrot from the ALRC also acknowledged that a stay could 'operate differentially' in certain civil proceedings:

... in the bulk of civil cases that I can envisage, either delay or stay would favour the government's interests because the government would normally-but not always-be the defendant in those proceedings. 41

3.28 Professor Weisbrot continued:

We did not have a solution for that other than to say that, if the proceedings were more court centred -if they were proceeding in that way rather than on the basis of prescriptive certificates-the court would be able to fashion some sort of balance to try to make sure that the proceedings could go ahead ifpossible.42

3.29 Similarly, Mr Emerton was concerned that the court's power to stay proceedings establishes a victory for the defendant as the default position:

.. . for the defendant, in a civil suit, a stay is as good as a win, and so by making a stay the last resort in the interests of justice, the Bill establishes as the default position a victory for the defendant. But it is far from clear that such an outcome is always consistent with the interests ofjustice.43

3.30 For Mr Emerton, this default position was particularly concerning in the context of certain proceedings, such as a challenge to unlawful detention under an ASIO warrant, where a stay would result in the person remaining in detention. 44

Mr

Emerton also argued a stay could potentially advantage the Commonwealth in many circ*mstances. 45 However, he also acknowledged that a stay could work against the Commonwealth in matters where the Commonwealth is a plaintiff. 46

3.31 HREOC was similarly concerned that the court's power to stay proceedings would generally work against the interests of a person seeking to use civil proceedings to obtain effective remedies for actual or future violations of their human rights:

... in civil proceedings, the court's power to stay, discontinue, dismiss or strike out the relevant proceedings (where unfairness results from the fact

40 Submission 15, p. 2; see also Mr Peter Webb, Law Council, Committee Hansard, 13 April 2005 , p. 29.

41 Committee Hansard, 13 April2005, p. 11.

42 Committee Hansard, 13 April 2005, p. 11 .

43 Submission 8, pp 24-25; see also Committee Hansard, 13 April2005, pp 3-4.

44 Submission 8, pp 24, 28.

45 Submission 8, p. 29.

46 Committee Hansard, 13 Apri12005, p. 4.

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that confidential information cannot be revealed) will work against parties seeking to use the courts to obtain effective remedies for violations of fundamental rights. 47

Page 15

3.32 While HREOC did not have any recommendations for amendments to the stay provisions of the Bill, it did propose a number of amendments to other provisions of the Bill (which are considered later in this chapter). HREOC believed that these other amendments would provide further safeguards against injustice in situations where remedies for human rights violations are at issue.48

3.33 A representative from the Attorney-General's Department acknowledged that, in developing the provisions of the Bill relating to the court's power to stay proceedings, they had difficulty finding guidance from cases in the area. However, the Department noted that:

It is certainly not our intention to alter in any way the common law. We recognise that the position of litigants in a civil case is very different from that of a defendant in a criminal case. The court has to consider the impact on the proceedings as a whole rather than seeing its role as protecting the interests of one party-namely, a criminal defendant. 49

3.34 The representative further noted that the cases indicate 'it is very rare for a court in a civil case to grant a stay. . . it would be extremely unusual. .. the court would look carefully at the impact of a decision to stay proceedings.'50

3.35 Similarly, the ALRC submitted that the stay provisions in the Bill are consistent with the ALRC's recommendation on the matter, which did not distinguish between criminal and civil proceedings. Further, the ALRC emphasised that:

The ALRC considers that the particular consequences of the stay of any given proceedings would be given due consideration and weight by the court exercising its discretion, whether they be criminal or civil proceedings. 51

3.36 Professor Weisbrot from the ALRC further observed that 'it would take a fairly powerful set of circ*mstances for a court to say there was no chance of having a trial at all in civil proceedings, although it could happen.' 52

47 Submission 12, p. 8; also Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005, p. 21.

48 Submission 12, p. 8; also Mr Craig Lenehan, HREOC, Committee Hansard, 13 April2005, p. 22.

49 Committee Hansard, 13 April 2005, p. 32; see also p . 35 .

50 Committee Hansard, 13 April 2005, p . 32.

51 Submission 6, p. 5.

52 Committee Hansard, 13 April 2005, p. 11.

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The committee's view

3.37 The committee notes that, in its inquiry in relation to the Criminal

Proceedings Bill, it recommended that the courts retain the power to stay proceedings if the defendant could not be assured of a fair trial. 53 However, the committee acknowledges that a stay of proceedings could have a very different impact in the context of civil proceedings. The committee also recognises that it is very rare for a court to order a stay in civil proceedings.

3.38 Nevertheless, the committee considers that the court should retain the power to stay civil proceedings as a last resort, and notes the ALRC's observation that the particular consequences of the stay of any given proceedings would be given due consideration and weight by the court exercising its discretion. The committee also considers that its recommendations later in this report will give the court a greater discretion over other matters during civil proceedings, and may therefore help avoid the need for a stay of proceedings.

Restrictions on the court's discretion

3.39 Many submissions were concerned that the Bill would affect the

independence of the courts, particular!{;; by giving the Attorney-General too much power to intervene in court processes. 4 Indeed, several submissions expressed the view that the Bill could give rise to the possibility of abuse of power by the Attorney­ General.55 For example, Dr Waleed Kadous from AMCRAN argued that:

The potential for abuse of this power in civil cases is far more real than in criminal cases. It is rare for the government to be the defendant in a criminal case but it is hardly rare for it to be the defendant in a civil case. 56

3.40 Other submissions suggested that, by giving the Attorney-General too much power to intervene in and influence civil court proceedings, the Bill raises issues in relation to the doctrine of separation of powers. 57

3.41 Mr Emerton was particularly concerned that where the Commonwealth is a party in a proceeding:

53 See Criminal Proceedings Bill report, p. 25 (Recommendation 6).

54 See, for example, Mr Emerton, Committee Hansard, 13 April 2005, p. 2; Lesbian and Gay Solidarity, Submission 2, p. 3; Federation of Community Legal Centres (Vic), Submission 9, p. 4; Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, p. 15 .

55 Mr Patrick Emerton, Submission 8, p. 18 ; Law Society of South Australia, Submission 5, p. l ; Australian Press Council, Submission 13, p. 2.

56 Committee Hansard, 13 April2005, p. 15.

57 See, for example, Mr Patrick Emerton, Committee Hansard, 13 April2005, p. 7; Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, p. 16; AMCRAN, Submission 3, pp 6-7; PlAC, Submission 7, p.3 ; Federation of Community Legal Centres (Vic), Submission 9, pp 1-2; Victoria Legal Aid, Submission 14, p. 2.

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... there would be the very obvious threat of these powers being exercised in a biased way to advance the Commonwealth's case. This possibility is only increased by the fact that the definition of 'permitted disclosure' together with the fact that the Commonwealth controls the granting of .

security clearances mean that the security clearance regime will be no obstacle to the Commonwealth's preparation of its own case. 58

3.42 Mr Emerton further submitted that:

In the final analysis, it does not matter whether such abuse actually occurs. The Attorney-General is a politician, and a senior member of the Cabinet. Even if he or she acts at all times with complete propriety, the mere fact that the Bill would give rise to the possibility of political abuse - whether by way of interference in proceedings to which the Commonwealth is not a party, or by use of the regime to advantage the Commonwealth in those matters to which it is a party - may potentially undermine confidence in, and the appearance of legitimacy of, the administration of justice in Australia. 59

3.43 Mr Emerton was also particularly critical of the triggering mechanism in the Bill, noting that:

It would give to the Attorney-General - one of the most senior political figures in the country - the power to determine whether or not the Bill's regime would apply to any given matter. This would open the door to both the appearance of, and the fact of, political interference in the administration of justice. 60

3.44 In its report, the ALRC recommended a more flexible approach to dealing with security information and left greater discretion with the courts to determine how proceedings will be run. 61 The ALRC submitted that:

It should be noted that closed hearings, ministerial certificates and security clearances are not the only methods of dealing with classified and security sensitive information (including the protection of the identity of a witness) in court proceedings. The ALRC recommended a flexible approach­ allowing courts to make a broad range of orders to protect such information. 62

3.45 Professor Weisbrot elaborated on this:

58 Committee Hansard, 13 April 2005 , p. 2.

59 Submission 8, p. 18.

60 Submission 8, p. 2; see also Committee Hansard, 13 April 2005 , p. 6.

61 Submission 6, p. 4; see also Professor George Williams and Dr Ben Saul, Submission 10, p. 2; and Mr Patrick Emerton, Submission 8A, p. 4. 62 Submission 6, p. 5; see also Professor David Weisbrot, Committee Hansard, 13 April2005 , pp 13-14; and Professor George Williams and Dr Ben Saul, Submission 10, p. 2.

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... in the ALRC's view, that was a matter, and judges are making those kinds of difficult balances all the time-for example, on whether important evidence is more prejudicial than it is probative and one side or the other is urging strongly that it is an important matter for their case. We think the courts are already sensitive and skilled at making those kinds of balances and we did not think it was necessary to provide that further direction. Similarly, on whether to close proceedings-those are the two that come to mind readily-the ALRC's recommendations were more along the lines of allowing the court to make those determinations itself. 63

3.46 Dr Waleed K.adous from AMCRAN argued:

... there should always be a trend or a preference for open accountability and open court proceedings. I do understand that there is occasionally the need for national security, but at least that process itself should be independent of the government. Having it in the hands of the government will make it just too tempting, and the old adage applies: imagine that these powers were not in your hands but in the hands of your worst enemy-that is, the opposing political party; imagine how they would soon be used. 64

3.47 , For this reason, AMCRAN suggested that an independent third party, such as the Inspector-General of Intelligence and Security (IGIS), should make certain decisions under the Bill, such as whether an issue is a matter of 'national security'. 65

3.48 Indeed, as noted in the previous chapter, a key difference in relation to the civil proceedings regime is that, where the Attorney-General is a party to proceedings, the Bill provides for the Attorney-General to appoint a Minister to perform the Attorney-General's functions. A number of submissions were concerned that this was not an adequate mechanism to resolve any potential conflict ofinterest.66 For example, the Federation of Community Legal Centres (Vic) argued that this mechanism 'fails to recognise the conflicted position any government minister would be in where another government department is involved in proceedings.'67 Similarly, AMCRAN submitted that:

It makes little difference whether the Attorney-General or another Minister hold the reins; in either case decisions having a major impact on the admissibility of evidence in a civil case are made by the person. It is obviously partial that this the same person probably belongs to the same political party or coalition as the Attomey-Generai. 68

63 Committee Hansard, 13 April2005, p. 13 .

64 Committee Hansard, 13 April2005, p. 18.

65 Submission 3, p. 7; see also Dr Waleed Kadous, Committee Hansard, 13 April 2005 , p. 16.

66 Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005 , p. 16; Law Society of South Australia, Submission 5, p. 1; Federation of Community Legal Centres (Vic), Submission 9, p. 3.

67 Submission 9, p. 3.

68 Submission 3, p. 9.

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3.49 The Law Society of South Australia submitted that the decision-making powers 'would be best taken out of the political arena to reside with a senior public servant.' 69

As noted above, AMCRAN proposed that some of the Attorney-General's functions under the Bill should reside with an independent third party, such as the IGIS.70 Dr Waleed Kadous of AMCRAN explained:

. . . the power to issue certificates [should] be moved away from the representative arm of government to a senior public servant. In particular, rather than the Attorney-General deciding whether a case has national security implications, we suggest it should be given to some other office, perhaps to the Inspector-General of Intelligence and Security ... 71

3.50 AMCRAN proposed that 'the Attorney-General, for example, could apply to the IGIS for such a certificate, rather than he himself being the source.' 72 Dr Kadous explained that:

The Inspector-General of Intelligence and Security obviously has the security clearances required and is well equipped in the role to balance the need for security against the rights of Australian citizens. That is his day­ today job. At the very least, this should be the case when the Commonwealth is one of the litigants in a civil case, instead of the government sitting in judgment of itself. 73

3.51 A representative of the Attorney-General's Department responded to AMCRAN's suggestion:

Certainly there are cases in which public interest immunity affidavits have been given by senior public servants, but whether they would be considered to be independent is really a matter of speculation. They would probably not be. I am not aware of a situation where there is provision for an independent person to make that assessment. Generally, the courts have said that the Attorney or a minister is an appropriate person to make a decision that concerns the public interest in so far as it relates to national

security. The IGIS is probably an alternative. Whether it fits the independence that was suggested by the submitters is another matter. 74

3.52 The committee notes that the IGIS is an independent statutory office set up under its own legislation, the Inspector-General of Intelligence and Security Act 1986. Its responsibilities include monitoring the activities of intelligence and security agencies as well conducting inquiries, investigating complaints and making

69 Submission 5, p. 1.

70 Submission 3, p. 10.

71 Committee Hansard, 13 Apri12005, p. 16.

72 Submission 3, p. 7; see also Dr Waleed Kadous, AMCAN, Committee Hansard, 13 Apri12005, p. 16.

73 Committee Hansard, 13 Apri12005, p. 16.

74 Committee Hansard, 13 Apri12005, p. 37.

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recommendations to government concerning those agencies. The committee notes that, in this regard, the IGIS is an important element of the accountability regime for Australia's intelligence and security agencies. 75

The committee's view

3.53 The committee acknowledges the concerns that exist over the perceived conflict of interest arising out of the Attorney-General's power under the Bill to intervene in civil proceedings. This situation differs from that in federal criminal proceedings, where an independent statutory office holder - the Director of Public Prosecutions- would be involved in proceedings. The committee also acknowledges concerns of some witnesses in relation to the appointment of another Minister to perform the Attorney-General's functions under the Bill where the Attorney-General or the Commonwealth is a party to a civil proceeding.

3.54 However, the committee notes that the provisions in question will in effect authorise the Executive's intervention in civil legal proceedings in certain specified circ*mstances. The committee's view is that it would be inappropriate for such an intervention to be authorised by anyone other than the Executive (ie, by a Minister). The committee also notes witnesses' difficulty in identifying an independent alternative to a Minister who might appropriately exercise this role. While the IGIS was put forward as a possible alternative, the committee's view is that providing the IGIS with the responsibility to issue national security information certificates is at odds with the crucial role of the IGIS in holding Australia's intelligence and security agencies to account.

3.55 The committee considers that its recommendations later in this report may help to address these concerns by giving the court greater discretion over matters in civil proceedings. Moreover, it is noted that the committee - and parliament as a whole - will also have an active role in monitoring this issue in the future operation of the legislation.

Specific provisions relating to the court's discretion

3.56 In the context of interference with the court's discretion, several specific provisions were raised in submissions, including provisions relating to:

closed hearing requirements;

weighing national security against the right to a fair trial; and

• access to court records of closed hearings.

3.57 Many submissions were concerned about the provisions of the Bill requiring the court to hold closed hearings (subclauses 38G(3) and 38H(7)). Similar concerns

75 See further: http://www.igis.gov.au (accessed 28 April2005).

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were raised in relation to analogous provisions of the Criminal Proceedings Bill during the committee's inquiry into that Bill.76

3.58 During this inquiry, for example, the Public Interest Advocacy Centre (PIAC) argued that the closed hearing may offend principles of open and

transparent administration of justice. 7 Mr Emerton also queried the logic of the closed hearing regime:

. . . we could see the court reach a decision after the closed hearing that certain information is to be excluded or to be admitted only in a limited way. This would be the court in its capacity as a court of law deciding that, in its capacity as a tribunal of fact, it is not allowed to consider the information. Again, one asks what the logic is ofthis.78

3.59 HREOC noted that article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) specifically requires a public hearing, in certain limited circ*mstances including in the interests of national security. 9 However, HREOC explained that this:

. . . does not mean that any matter touching upon national security may be. considered in closed court without offending article 14(1). Rather such encroachments on the right to a public hearing must be limited to what is strictly necessary in proportion to the perceived threat to national security. 80

3.60 HREOC believed that, by removing from the court the discretion to hold a closed hearing, the approach adopted in the Bill would be unlikely to satisfy this test of proportionality. 8 HREOC further noted that '... where the 'exceptional circ*mstances' specified in article 14(1) are relied upon for closing a court, reasons must be provided for not providing a public trial.' HREOC therefore recommended that the provisions of the Bill directing the court to hold closed hearings (that is,

subclauses 38G(3) and 38H(7)) be omitted and that the matter of closed hearings be left to the discretion of the court. HREOC also recommended that the court be expressly obliged to provide reasons where proceedings are heard in camera. 82

3.61 In the same vein, the ALRC noted that, in its report, it:

76 See Criminal Proceedings Bill report, pp 19-22.

77 Submission 7, p. 4; see also the Federation ofCo=unity Legal Centres (Vic), Submission 9, pp 1-2 and4.

78 Committee Hansard, 13 April2005, p. 2; see also PP 4-5.

79 Submission 12, p. 9; Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005 , p. 22.

80 Submission 12, p. 9.

81 Submission 12, p. 9; Mr Craig Lenehan, HREOC, Committee Hansard, 13 April2005, pp 22-23.

82 Submission 12, p. 9.

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.. . did not propose that a court be directed by statute to hold any hearing in closed session. The ALRC recommendations in this regard contemplate that the power to determine how the proceedings will be run should rest with the court. 83

3.62 Many submissions raised concerns in relation to subclauses 38L(7) and (8) of the Bill. 84 Once again, similar concerns were raised in relation to analogous provisions ofthe Criminal Proceedings Bill during the committee's inquiry into that Bill.85 In this Bill, subclause 38L(7) requires the court to consider a number offactors when making orders for dealing with national security information. These include the risk of prejudice to national security and whether the court's order would have a substantial adverse effect on the substantive hearing in the proceeding. However, subclause 38L(8) requires the court to give the greatest weight to the risk of prejudice to national security.

3.63 Several submissions suggested that subclause 38L(8) be removed altogether.86 For example, HREOC expressed its view that:

While acknowledging that possible prejudice to national security ought to be given great weight, the Commission is of the view that the courts should retain a more flexible discretion which can be better tailored to the circ*mstances of each matter. That will be particularly so in matters ... where decisions to exclude certain evidence may diminish a party's capacity to seek remedies for violations of their human rights. 87

3.64 HREOC and AMCRAN also recommended that the word 'substantial' be deleted from proposed paragraph 38(L)(7)(b).88 HREOC further proposed that:

... a new subsection be added to s38(L)(7) requiring the court to consider 'whether any such order would have an adverse effect on the hwnan or fundamental rights of a party'. 89

3.65 Mr Emerton also supported similar amendments, suggesting that the court should have the right 'to weigh the protection of national security against the fairness to the litigants involved and to itself be able to assess all of those factors with no statutorily imposed weighting in favour of one consideration against another. '

90

83 Submission 6, p . 3; see also Professor George Williams and Dr Ben Saul, Submission 10, p. 2.

84 See, for example, Mr Patrick Emerton, Submission 8, pp 22-23; HREOC, Submission 12, p. 7; Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April 2005, p. 15.

85 See Criminal Proceedings Bill report, pp 41-43.

86 See, for example, AMCRAN, Submission 3, p. 8; Law Council, Submission 15, p. 3; HREOC, Submission 12, p. 7.

87 Submission 12, p. 7.

88 HREOC, Submission 12, p. 7; AMCRAN, Submission 3, p. 8.

89 Submission 12, p. 7.

90 Committee Hansard, 13 April 2005, p. 6.

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3.66 A representative of the Attorney-General's Department observed that, in relation to the amendments proposed by HREOC:

Many of the issues that were raised in the submission are issues that are common to both the Criminal Proceedings Act and the bill. To the extent that those provisions are similar, it would certainly not be desirable, I think, to inject different procedures-for example, in relation to giving the court a greater discretion under 38L(7) and 38L(8).91

3.67 Several submissions also raised concerns that the Bill, particularly subclause 381(9), would restrict the court's discretion in relation to access to court records of closed hearings.92 Again, restrictions on access to court records were raised during the committee's inquiry into the Criminal Proceedings Bill. 93

3.68 For example, the Federation of Community Legal Centres (Vic) was concerned that the provisions relating to court records effectively meant that 'the Attorney-General is able to determine defmitively what information parties to civil proceedings are able to obtain'. 94

3.69 HREOC was also concerned that access restrictions in clause 381 may frustrate a person's ability to appeal from a court order under s38L. HREOC recommended that the Bill be amended at least to permit access to the record by security cleared parties who have engaged lawyers. HREOC also recommended that the Bill be amended to:

• give the court a wider discretion to determine the disclosure regime for the record (including the power to allow access by parties and legal representatives who are not security cleared, subject to such undertakings and conditions as the court considers appropriate); and

• expressly require the court to consider the possible adverse effects on affected parties in applications to vary the record by the Attorney-General. 95

The committee's view

3. 70 The committee notes that similar concerns in relation to the level of intervention by the Attorney-General in court proceedings were raised during the committee's inquiry into the Criminal Proceedings Bill. The committee made a

91 Committee Hansard, 13 April2005, p. 34.

92 See especially subclause 381(5). See also HREOC, Submission 12, pp 9 and 11-12; Law Council, Submission 15; Federation of Conununity Legal Centres (Vic), Submission 9, p. 2.

93 Criminal Proceedings Bill report, pp 20-22.

94 Submission 9, p. 2.

95 Submission 12 , p. 12; see also Mr Patrick Emerton, Submission 8, p. 20.

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number of recommendations in relation to that Bill that were intended to give courts greater discretion in the conduct of their proceedings.96

3.71 Some of these recommendations were taken up in amendments to the Criminal Proceeding Bill, which are now contained in the Act. In particular, the Act and the Bill reflect the committee's recommendation that the court retains the power to stay proceedings if a fair trial cannot be guaranteed (see Recommendation 6). This addresses many of the committee's concerns, notwithstanding its differential impact in relation to civil proceedings as discussed earlier in this report. Nevertheless, the committee remains concerned about some provisions of the Bill which restrict the court's discretion.

3.72 The committee recognises that other amendments were made to the Act, and these are also reflected in this Bill. For example, under section 32 of the Act, the court is required to give reasons for making orders under the Act. Similarly, clause 38M of the Bill will require the court to give reasons for making orders under clause 38L.

3.73 The committee also notes that other recommendations made by this committee were not reflected in the fmal Act. The committee therefore considers it appropriate to reiterate some of its previous recommendations in relation to this Bill, to ensure that the court has an appropriate level of discretion in the conduct of proceedings.

3.74 In to the closed hearing requirements, the committee reiterates its concern that the court will have no discretion to determine whether these proceedings should be opened or closed. The committee remains of the view that the court should retain the discretion in relation to whether or not to make an order for closed hearings when considering the Attorney-General's certificate. The committee also considers that the court should be required to provide a statement of reasons for holding a closed hearing. The committee notes that it made recommendations to this effect in relation to the Criminal Proceedings Bill, but they are not reflected in the Act.

Recommendation 1

3.75 The committee recommends that subclauses 38G(3) and 38H(7) of the Bill, which require the court to hold closed hearings, be removed so that the court retains its discretion to determine whether its proceedings are open or closed.

Recommendation 2

3.76 The committee recommends that the Bill be amended to include a provision requiring the court to provide a written statement of reasons outlining the reasons for holding proceedings in-camera.

96 See Criminal Proceedings Bill report, pp 19-22 and 41-45 ; and especially Recommendations 2-5 and 11 -13 .

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Recommendation 3

3.77 If Recommendations 1 and 2 are not supported, the committee recommends that, as a commitment to the right of a defendant to a fair, public hearing, the Bill should be amended to include a provision requiring the Attorney-General to publish a statement of reasons for any decision to bold a closed hearing.

3.78 As with the Criminal Proceedings Bill, the committee is concerned about the requirement for the court to give the greatest weight to the risk of prejudice to national security. In this Bill, those requirements are contained in subclauses 38L(7) and (8) of the Bill. The committee therefore again proposes similar recommendations in relation to this Bill - that is, that the term 'substantial' be removed from paragraph 38L(7)(b) and that subclause 38L(8) should be removed from the Bill.

Recommendation 4

3.79 The committee recommends that the term 'substantial' be removed from paragraph 38L(7)(b) of the Bill.

Recommendation 5

3.80 The committee recommends that subclause 38L(8) be removed from the Bill.

3.81 In relation to access to the record of the closed hearing, the committee also believes that the Bill should allow the court greater flexibility in determining how evidence taken in-camera should be made available. In particular, the committee believes that the defendant and his or her legal representative should only be denied

access to the transcript in the most extraordinary of circ*mstances. If the court restricts access to the record, reasons should be provided. Further, if the Attorney-General applies for the record to be varied, the court should be required to consider the possible adverse effects on affected parties if a variation is made to that record.

Recommendation 6

3.82 The committee recommends that subclauses 381(5) and (9) of the Bill be amended to allow the courts the discretion to determine to what extent the court record or parts of it should be made available and any undertakings required for people to have access to the record.

Recommendation 7 3.83 If the above recommendation is accepted, the committee recommends that the Bill be amended to include a provision requiring a court to provide a statement of reasons for any restriction placed on the distribution of aU or part of a court record.

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Recommendation 8

3.84 The committee recommends that the Bill be amended to require the court to consider the possible adverse effects on affected parties in making a decision under subclause 381(8) in relation to an application to vary the record by the Attorney-General.

Security clearances

3.85 Many submissions raised concerns in relation to security clearance requirements. 97 Once again, very similar concerns, in relation to analogous provisions, were raised during the committee's inquiry into the Criminal Proceedings Bi11. 98 For example, Victoria Legal Aid argued that:

... there are already sufficient stringent requirements to ensure that lawyers are competent to operate in sensitive areas of national security, and are answerable for contraventions of this duty. A requirement for security clearance for lawyers will seriously affect the of adequate and proper services by an organisation such as VLA.

3.86 The ALRC informed the committee that, in the course of its inquiry into classified and security sensitive information, it had:

. . . felt uncomfortable about making a recommendation to the effect that a court or tribunal could order a lawyer to submit to the security clearance process. However, the ALRC noted that if important material is not available to counsel in the proceedings, they run a risk of failing to provide their client with effective assistance, and consequently should consider seeking a security clearance or withdrawing from the proceedings. The ALRC suggested that the proper focus should not be on the dignity or convenience of the lawyer, but rather on the client receiving the best possible representation in circ*mstances in which highly classified information must be protected.100

3.87 As with the Criminal Proceedings Bill, some submissions expressed the view that the requirements relating to security clearances for lawyers would unfairly restrict a person's choice of lawyer. 101 For example, Dr Waleed Kadous from AMCRAN expressed his view that:

97 See, for example, PIAC, Submission 7, p . 5; Mr Patrick Emerton, Submission 8, p. 10; Victoria Legal Aid, Submission 14, pp 2-3; Law Council, Submission 15, p. 3; AMCRAN, Submission 3, p. 11.

98 See Criminal Proceedings Bill, especially pp 34-40.

99 Submission 14, pp 2-3.

100 Submission 6, p . 4.

101 See, for example, Amnesty, Submission 11, pp 14-15; Law Council, Submission 15, pp 3-4; Federation of Community Legal Centres (Vic), Submission 9, p . 2; Mr Peter Webb, Law Council, Committee Hansard, 13 April2005, p. 28.

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... if a client is really interested in presenting the best possible case, then realistically that person, if their lawyer does not get security clearance, will have to hire another lawyer and once again go through the process of briefing that lawyer-at their own expense, possibly, if they happen to lose . the case. In addition, that new lawyer has to go through a security clearance. The person could be on this roundabout picking lawyer after lawyer that he trusts but that the government does not want to give security clearance to. Eventually he has to settle for a lawyer that already has security clearance, even if he would not like to choose that particular lawyer. 102

3.88 Several submissions expressed concern about aspects of the procedures for obtaining security clearances. For example, as with the Criminal Proceedings Bill, many felt that basing the security clearance rcrocess on the Australian Government Protective Security Manual was inappropriate. 03 One of the key concerns was that the manual is a policy document issued by the Attorney-General's Department and is not publicly available. AMCRAN also expressed concern about some of the 'vague' and 'subjective' terms used in the manual, such as 'reliability, truthfulness, honesty'.104 The Federation of Community Legal Centres (Vic) expressed concern that the manual is 'subject to variation by the executive government at any time, free of any legislative, judicial or public overpight.' 105

3.89 As with the committee's inquiry into the Criminal Proceedings Bill, it was suggested that the courts should retain discretion over the security clearance process, rather than the Secretary of the Attorney-General's Departrnent. 106 For example, the Law Council argued that:

Fundamentally the Law Council believes that a court, and not the Secretary of the Attorney General's Department, should determine whether a legal representative and, in the case of this Bill, the parties and the assistants of a legal representative, require a security clearance. Failing this, the process undertaken by the Secretary of the Attorney General's Department should be as fair and as transparent as possible.

107

102 Committee Hansard, 13 April2005, p . 19.

103 See, for example, Mr Patrick Emerton, Submission 8, p. 10; AMCRAN, Submission 3, p. 11 ; Law Council, Submission 15, p. 3; Federation of Community Legal Centres (Vic), Submission 9, p. 3; Victoria Legal Aid, Submission 14, p. 2; see also Note 1 to subclause 39A(2) of the Bill.

104 Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, pp 18-19.

105 Submission 9, p. 3; see also Mr Patrick Emerton, Submission 8, p. 10.

106 See, for example, AMCRAN, Submission 3, p. 10; Law Council, Submission 15, p. 3; Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April 2005 , p. 18.

107 Submission 15, p. 4; see also Mr Peter Webb, Law Council, Committee Hansard, 13 April 2005, p. 28.

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3.90 AMCRAN suggested that the security clearance process should be set out in the legislation. AMCRAN further observed that its objections to the security clearance procedures are:

... even more relevant in the present Bill in that a self-represented party to proceedings may seek security-clearance in order to access the material in question. For some, going to court is already a harrowing experience, especially those who have no choice but to be self-represented because of a social- or economical disadvantage. To further subject them to personality analysis that brings into question their maturity, honesty and loyalty would no doubt have the additional effects of intimidation and demoralisation. 108

3.91 Indeed, unlike the Act's provisions in relation to criminal proceedings, the Bill provides that a party (not just the party's representative) may apply for a security clearance. The ALRC noted that, while it did not make a recommendation about the security clearance of a party, this provision in the Bill was consistent with the ALRC's approach to the issue. The ALRC also noted that this provision will be particularly relevant where a party is unrepresented (which is a more likely occurrence in civil proceedings). 109

3.92 During his second reading speech, the Attorney-General noted these provisions and acknowledged that many parties may represent themselves in civil proceedings:

In recognition of the additional financial burden involved in engaging a security cleared legal representative to attend a closed hearing, the government has agreed that a self-represented litigant involved in a civil matter under Commonwealth law who is refused a security clearance at the appropriate level would be eligible to apply for financial assistance under the non-statutory special circ*mstances scheme. 110

3.93 The Attorney-General continued:

If approved, this would provide financial assistance for the legal costs and related expenses associated with engaging a legal representative to attend the closed hearing. It is my expectation that such legal assistance in those circ*mstances would be available. 111

3.94 The ALRC noted that the opportunity for unrepresented parties who are unable to obtain a security clearance to access financial assistance to obtain a security cleared lawyer is an important component of the scheme and is consistent with the

108 Submission 3, pp 10-11.

109 Submission 6, p. 4; see also Mr Craig Lenehan, HREOC, Committee Hansard, 13 April2005, p. 24.

110 The Hon. Mr Philip Ruddock MP, Attorney-General, House of Representatives Hansard, 10 March 2005, p. 1.

111 The Hon. Mr Philip Ruddock MP, Attorney-General, House of Representatives Hansard, 10 March 2005, p. !.

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ALRC's approach. 112 Similarly, the Law Council also appeared to be supportive of the provision of financial assistance to self-represented litigants. 113

3.95 In response to questioning from the committee on this issue, Mr Lenehan from HREOC observed that, if a self-represented litigant were refused fmancial assistance:

. . . in some circ*mstances that is going to mean that the potential of the court to provide an effective remedy is going to become illusory, so where violations of human rights are concerned that again is going to raise article 2 ofthe ICCPR.114

3.96 The committee asked the Attorney-General's Department how the scheme for financial assistance for self-represented litigants would operate, and the funds that would be available to the scheme. The Attorney-General's Department responded that, while there is no separate appropriation for the scheme, there is an appropriation of $1.4 million for all schemes of financial assistance (apart from native title schemes). The Attorney-General's Department also explained that a decision in relation to financial assistance would be made based on whether the applicant fulfilled the relevant criteria - that is, 'that the applicant is unrepresented in proceedings and has been denied the relevant security clearance.' The Department further clarified that:

Funding is only available for the purpose of engaging a legal representative with the appropriate security clearance to attend the closed hearing or appeal. Funding will be approved if the applicant would suffer fmancial hardship if assistance were refused. 115

3.97 The Department also explained that, where there is a decision to refuse assistance, written reasons will be provided, and an internal review of that decision may be requested. 116

Security clearances - associated issues

Disclosure provisions and offences

3.98 One of the key implications of the security clearance requirements relates to the Bill's restrictions on the disclosure of national security information. In particular, once the regime under the Bill has been invoked by the Attorney-General issuing a certificate, clause 46G creates an offence for disclosing information to parties, legal representatives and persons assisting legal representatives, where that disclosure , is likely to prejudice national security. The Bill then sets out 'a complex set of

11 2 Submission 6, p. 4.

113 Mr Peter Webb, Law Cotmcil, Committee Hansard, 13 April2005, p. 30.

114 Committee Hansard, 13 April2005, p. 24 .

115 Submission 16, p. 4.

11 6 Submission 16, p. 4.

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exemptions that apply to that offence'. 117 Mr Patrick Emerton and HREOC explained that these exceptions include situations where:

the person disclosing the information is a legal representative or person assisting a legal representative who has been given a security clearance considered appropriate by the Secretary of the Attorney-General's Department and discloses the information in the course of her or his duties in relation to the proceedings;

• the person disclosing the information is a party who has been given a security clearance considered appropriate by the Secretary of the Attorney-General's Department and discloses the information in the proceeding or a closed hearing;

• the person receiving the information is a party, legal representative or person assisting a legal representative who holds such a security clearance; or

• the disclosure is by an employee, officer or Minister of the Commonwealth, and takes glace in the course of his or her duties in relation to the

proceeding. 18

3.99 HREOC observed that 'this scheme creates a somewhat odd series of anomalies.tl 19 Similarly, Mr Emerton submitted that 'the effects of this offence are several. Because of the complexity of the exceptions, not all of them are obvious.' 120 Mr Emerton observed:

... as far as I can tell, the interaction of the two sections [clause 46G and section 16] result in an outcome where A could talk to B if A was security cleared or if B was security cleared but A was not, but not if neither was, but there would be no requirement that both be security cleared-and I ask what the logic is of this. It seems to me that all the security regime really achieves is to undermine the integrity and the independence of lawyers by making them beholden to the Commonwealth and by making it harder for litigants to be represented by a lawyer of their choice. 121

3.100 Several submissions felt that these provisions may interfere with lawyer-client relations and/or impact on a party's ability to prepare their case.122 For example, Mr Emerton argued that 'the general effect of the offence [in clause 46G] is to inhibit all

117 HREOC, Submission 12, pp 12-13; see also Mr Patrick Emerton, Submission 8, pp 6-7.

118 See proposed section 16 and subclause 460; also HREOC, Submission 12, pp 12-13; Mr Patrick Emerton, Submission 8, pp 6-7.

119 HREOC, Submission 12, p. 13 .

120 Submission 8, p . 7.

121 Submission 8, p. 2.

122 See, for example, Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, p. 19; HREOC, Submission 12, pp 12-13; Mr Patrick Emerton, Submission 8, pp 6-9; Victoria Legal Aid, Submission 14, p. 2; Amnesty, Submission 11, pp 12-13 .

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parties to the proceeding in the preparation of their cases, by making it an offence for anyone to disclose certain il!formation to them.' 123 Similarly, the Federation of Community Legal Centres (Vic) was concerned that the effect of clause 46G:

... would be to limit the capacity of a lawyer to receive a comprehensive briefmg from his or her client, or to discuss the subject matter of the proceedings with possible witnesses and others. It would also seem to restrict a lawyer from informing a client, who is not security cleared, about the details and even outcome of proceedings. 124

3 .1 0 1 Mr Emerton argued that the disclosure provisions may also unfairly advantage the Commonwealth if they are a party, because it will be able to disclose the information in question for the purposes of working on its case, while other parties may well not be able to do so. 125 Mr Emerton explained:

The Commonwealth has a ready supply of security-cleared personnel, and through its control of the security clearance procedure is able to generate more of these if required. The Commonwealth is also in a good position to have the Secretary of the Attorney-General's Department approve disclosures. 126

3.102 HREOC observed that the disclosure scheme departs from the ALRC recommendations that the court should determine the disclosure regime for such information. 127 Mr Lenehan from HREOC argued that:

Courts have extensive experience dealing with this sort of information and, for that matter, confidential information in a private sector context ... Courts have very flexible procedures for dealing with this sort of material. That is our fundamental point: it really should be left with a court rather than being dependent upon the exercise of a discretion by the executive. 128

Exclusion of non-security cleared parties

3.103 Another important implication of the security clearance provisions is that clause 381 allows the court to exclude parties and legal representatives without security clearances from parts of closed hearings in certain circ*mstances. The Federation of Community Legal Centres (Vic) were concerned that the security clearance requirements meant that 'the Bill gives extensive power to the government to control who can participate in legal proceedings.' 129 Mr Patrick Emerton felt that

123 Submission 8, p. 7.

124 Submission 9, p. 2.

125 Submission 8, p. 13.

126 Submission 8, p. 8.

127 HREOC, Submission 12, p. 13.

128 Committee Hansard, 13 April2005, p. 24.

129 Submission 9, p. 2.

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these provisions were objectionable because 'they permit a party to a matter to be excluded from a hearing at which the admission of evidence potentially crucial to the matter is to be discussed.' 130

3.104 Similarly, Amnesty believed that:

. . . the parties should be present in court during the hearing to hear the full case, to refute or provide information to enable their counsel to refute evidence and to examine witnesses or advise their counsel in the exammation ofwitnesses. 131

3.105 HREOC was likewise concerned that an excluded party would have difficulties offering assistance to the court by presenting a contrary argument. HREOC argued that the absence of such an argument 'may well result in a central evidentiary element of the case being excluded or (in the case of documents) considerably modified.' 132 HREOC suggested that clause 38I be amended to:

• require the court to consider whether the making of an order excluding a party and/or their legal representative would adversely affect their right to a fair hearing, including the right to contest all the argument and evidence adduced by other parties; and

in exceptional circ*mstances where an 'exclusion order' is made, require the court to consider making orders which will ensure that a person is able to contest all the argument and evidence adduced by the Attorney-General or her or his legal re8resentative (including through the use of redacted evidence or submissions). 3

3.106 HREOC argued that the latter amendment 'would ensure that the right to make submissions about non-disclosure or witness exclusion (preserved by proposed s38I(4)) may be exercised in a meaningful fashion.' 134

The committee's view

3.1 07 The committee notes that the security clearance requirements and associated restrictions were a major concern during the ALRC's inquiry and this committee's inquiry into the Criminal Proceedings Bill. 135 In relation to the Criminal Proceedings

130 Submission 8, p . 19.

131 Submission 11 , p. 12.

132 Submission 12, p. 10.

133 Submission 12, p. 11; see also Mr Craig Lenehan, Committee Hansard, 13 April 2005, p. 22.

134 Submission 12, p. 11.

135 See Criminal Proceedings Bill report, especially pp 34-39.

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Bill, the committee made a number of recommendations in relation to security clearance requirements, some of which were implemented. 136

3.108 In relation to this Bill, the committee supports some ofHR.EOC's suggestions for amendments to this Bill. In particular, the court should be required to consider whether the making of an order excluding a party and/or their legal representative would adversely affect their right to a fair hearing, including the right to contest all the argument and evidence adduced by other parties.

3.109 In addition, the court must have a more active role in determining whether a party or a party's legal representative requires a security clearance. In particular, the committee accepts HREOC's suggestions for an amendment to clause 381 to ensure that the court is able to consider the impact of excluding a party or their legal representative, and whether that would adversely affect their right to a fair trial.

Recommendation 9

3.110 The committee recommends that clause 381 of the Bill be amended to require the court to consider whether the making of an order excluding a party and/or their legal representative would adversely affect their right to a fair hearing, including right to contest all the argument and evidence adduced by other parties.

Other issues

3.1 11 A number of other issues were raised during the committee's inquiry, including:

• the definition of 'national security';

• compliance with international obligations;

• the potential for increased delays and costs in civil proceedings;

• the appointment of court security officers;

• restrictions on judicial review;

• a possible sunset clause; and

• related provisions of the Migration Act.

Definition of national security

3.112 The defmition of 'national security', contained in section 8 of the Act, is central to the proposed legislation. 'National security' is defmed as 'Australia's defence, security, international relations or law enforcement interests'. These elements, in turn, are defmed in sections 9 to 11 of the Act. For example, 'international

136 For example, the Criminal Proceedings Bill report recommended that courts retain the power to stay proceedings if the defendant could not be assured of a fair trial (p. 25, Recommendation 6). The court retains the power to stay proceedings under section 19 of the Act.

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relations' in the Act is defined to mean 'political, military and economic relations with foreign governments and international organisations'.

3.113 As with the Criminal Proceedings Bill, several submissions expressed concern that the definition of 'national security' in the Act is too broad, vague and subjective. 137 For example, Professor George Williams and Dr Ben Saul submitted that:

A vast range of information potentially falls within the ambit of these definitions, particularly Australia's 'international relations interests' ... The Bill imposes strict liability for failure to notify the Attorney-General, regardless of whether a party unintentionally, inadvertently or mistakenly failed to notify.138

3.114 AMCRAN also commented that:

It is not inconceivable that according to this definition, almost any matter involving a non-Australian citizen or naturalised Australian citizen could be a matter relevant to 'national security'.139

3.115 PIAC suggested that guidelines should be created upon which self represented litigants and the legal profession could rely in preparing for civil proceedings. 140

3.116 For many submitters, the broad nature of the definition was of particular concern given that the proposed criminal offences in the Bill rely on this definition. 141

For example, Professor George Williams and Dr Ben Saul submitted that:

Considering the breath and vagueness of the definition of 'national security' under federal law, it is unduly onerous to criminalise the failure to notify the Attorney-General of national security information arising in civil proceedings (sections 38D and 46C).142

3.117 For example, clause 46C of the Bill contains an offence for failure to notify the Attorney-General if a party to civil proceedings knows or believes that they will

137 Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, pp 15 and 17; AMCRAN, Submission 3, pp 3-5 ; Amnesty, Submission 11, p. 16; Law Council, Submission 15, pp 5-6; Australian Press Council, Submission 13, p. 2; Australian Civil Liberties Union, Submission 1, p. 1; PIAC, Submission 7, p. 6. ; Federation of Community Legal Centres (Vic), Submission 9, p. 2; Professor George Williams and Dr Ben Saul, Submission 10, p. 1; Victoria Legal Aid, Submission 14, pp 1-2; Mr Patrick Emerton, Submission 8, p. 4 and Committee Hansard, 13 April 2004, p. 2.

138 Submission 10, pp 1-2.

139 Submission 3, p. 4.

140 Submission 7, p. 6.

141 See, for example, Anmesty, Submission 11, p. 17; Law Council, Submission 15, p . 5; PIAC, Submission 7, p. 6; Law Society of South Australia, Submission 5, p. 2; Mr Patrick Emerton, Submission 8, p. 11 .

142 Submission 10, p. 1.

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disclose information that relates to or may affect national security. 143 AMCRAN suggested that the offence in clause 46C should be removed altogether, arguing that:

... given the breadth of the definition of "national security" and all of its inherent vagueness and biases . . . it would be almost impossible for a person, especially one who is unrepresented, to form an opinion as to whether or not the information is likely to prejudice national security. To further impose a two-year prison sentence under these circ*mstances is entirely unjust. 144

3 .118 In the same vein, Amnesty argued that:

... the definition of "national security" is so broad as to make it virtually impossible to know if information is going to relate to national security or affect national security and therefore it is virtually impossible to know if one is committing an offence. 145

3.119 Similarly, the Law Society of South Australia expressed concern that the Bill requires:

... a party and his/her legal advisors to be particularly prescient as to what the Attorney mi!!ht consider affects national security, upon which opinions will be varied. 146

3.120 The Law Council was particularly concerned that the offence in clause 460 (fordisclosing information in civil proceedings to persons without security clearances) appeared to be 'absolute' in its application. That is, if information disclosed 'is likely to prejudice national security', the state of knowledge about the information on the part of the person unaware of its security nature appears to be 'immaterial'. 147

3.121 The Law Council suggested that, among other things, a defence or exception to the offence should be made available based on the 'reasonableness of the actions of the person disclosing the information.' 148 In response to this suggestion, a representative of the Attorney-General's Department pointed to the provisions of Division 5 of the Criminal Code, which 'requires intentional disclosure of the

information and recklessness as to whether or not it is national security information'. 149

143 Or they will call a witness who may make such disclosures.

144 Submission 3, p. 6; Dr Waleed Kadous, AMCRAN Committee Hansard, 13 April2005, p . 16.

145 Submission 11, p. 17.

146 Submission 5, p. 2.

147 Submission 15, p. 6; see also Mr Peter Webb, Law Council, Committee Hansard, 13 April 2005, pp 28-29.

148 Mr Peter Webb, Law Council, Committee Hansard, 13 April2005, p. 29; see also Submission 15, p. 6.

149 Committee Hansard, 13 April2005, p . 37.

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The committee's view

3.122 The committee notes that similar objections and concerns were raised in relation to the defmition of national security under Criminal Proceedings Bill. 150 The committee noted its concern in relation to the defmition of national security under the Criminal Proceedings Bill. The committee acknowledges that the definition was amended slightly to remove the references to 'national interests'.

3 .123 Nevertheless, the committee still considers that the defmition of 'national security' is extremely broad, especially in light of the fact that criminal offences under the Bill are based on the defmition. However, the committee considers that its recommendations elsewhere in this report may help address some of these concerns. The committee also recognises the Attorney-General's Department's evidence that the offences would require intentional disclosure of the information and recklessness as to whether or not it is national security information.

Compliance with international obligations

3.124 HREOC and Amnesty, among others, were concerned that the Bill may not comply with Australia's international obligations, for example, under the ICCPR. HREOC was particularly concerned with two key obligations under the ICCPR, that is:

•

•

the right to a fair and public hearing under article 14(1)); and

the right to grovide an effective remedy for violations of human rights under article 2(3). 51

3.125 HREOC's submission outlined a number of provisions of the Bill which may impact on the right to a fair and public hearing, such as the closed hearing requirements. 152 In relation to the obligation to provide effective remedies, HREOC submitted that the Bill would apply to many proceedings in which such remedies are in issue, such as proceedings relating to visa or passport entitlements; or proceedings relating to unlawful detention. 153 HREOC argued that, if the Bill operates so as to unduly restrict the ability of courts to provide remedies for potential human rights violations, it may leave Australia in breach of its obligations under article 2(3) of the ICCPR. 154 HREOC then outlined some of the specific provisions of the Bill which may be of concern in this context, including: the restrictions on the court's discretion; closed hearing requirements; potential to exclude parties and legal representatives

150 See Criminal Proceedings Bill report, pp 15-17.

151 HREOC, Submission 12, p. 2; Mr Craig Lenehan, HREOC, Committee Hansard, 13 April2005, p. 20; see also Amnesty, Submission 11, pp 11-15 .

152 Submission 12, pp 10-11; also Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005, p. 20.

153 Submission 12, pp 3-4.

154 Submission 12, p. 5.

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from parts of closed hearings; and restrictions on disclosure of information to parties and legal representatives. 155

3.126 HREOC made a number of suggestions for amendments to the Bill which it felt would address its concerns in relation to potential breaches of these international obligations. 156

These proposed amendments are considered elsewhere in this report. In particular, Mr Craig Lenehan from HREOC observed that:

The commission's key concerns in relation to both those rights [under the ICCPR] arise from the manner in which the bill applies constraints upon judicial discretion.157

3.127 Mr Lenehan continued:

. . . such constraints can operate to diminish the court's power to ensure equality between parties, which is one of the fundamental characteristics of a fair trial. Similarly, it can limit the court's capacity to provide effective remedies for violations of human rights. The commission's approach has therefore been to suggest amendments which would return power to the courts. I 58

3. 128 Amnesty also pointed out the right to a fair hearing under international law. Amnesty observed that 'an essential component of the right to a fair hearing is the principle of "equality of arms"'. 159 According to Amnesty, this principle firmly establishes the need for equality between the parties. Amnesty argued that:

... this principle would be violated, for example, if a party was not given access to information necessary for the preparation of their case, if a party was denied access to expert witnesses, or if a party was excluded from an appeal hearing where the other party was present. This Bill proposes several such restrictions that would directly undermine the right to "equality of arms" and would remove the equality between the parties.160

3.129 Amnesty was also concerned that the Bill would have an impact on international obligations to provide effective remedies. In this context, Amnesty was particularly concerned about the interaction that the Bill may have with the ASIO Act. 161 Amnesty also pointed to a number of other components of the right to a fair and public hearing under international law, such as the right to prepare, the impact of delay, and the right to a lawyer of a party's own choice. Amnesty argued that the Bill

155 Submission 12, pp 5-13.

156 Submission 12, pp 5-13.

15 7 Committee Hansard, 13 April 2005, p. 20.

158 Committee Hansard, 13 April 2005, p. 21.

159 Submission 11, p. 11.

160 Submission 11, p. 12.

161 Submission 11 , pp 15-16.

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may have adverse impacts on all these components. 162 These issues are considered in relation to specific provisions elsewhere in this report.

3.130 In response to the committee's questions as to whether the ALRC had any opinion on whether the regime may breach Australia's international obligations, Professor Weisbrot of the ALRC was less concerned, stating that:

... black-and-white reading of the covenant tends not to be how the world works in practice. We do allow proceedings to be closed in a number of circ*mstances, such as in the Children's Court and so on. So those rights are balanced against what is reasonably justifiable in a democratic society. In the particular circ*mstances of dealing with highly sensitive national security information, I think that those are some of the trade-offs you have to make. 163

3.131 Professor Weisbrot continued:

Given that we are putting things into the court process and giving the court the decision about ultimately whether things are conducted in closed hearings and how evidence is presented and whether it should be presented and ultimately whether fairness to the parties means fully proceeding or issuing a stay, I think those protections are well guarded. 164

3.132 However, Professor Weisbrot appeared to indicate that there could be some concerns under international law if the reftime were not extended to administrative tribunals, as discussed earlier in this report. 65 ·

The committee's view

3.133 The committee notes the concerns in relation to the potential impact of the Bill on Australia's obligations under international law. However, the committee considers that its recommendations elsewhere in this report may help alleviate these concerns.

Delay and costs

3.134 Several submissions were concerned about the Bill's potential to result in increased delays and costs in civil proceedings, due to the numerous provisions for adjournment, the security clearance requirements and the lack of time limits in the Bill. 166 For example, Amnesty argued that:

162 Amnesty, Submission 11, pp 12-15.

163 Committee Hansard, 13 April 2005, p. 11.

164 Committee Hansard, 13 April2005, p. 12.

165 Committee Hansard, 13 April 2005, p. 12.

166 See, for example, PIAC, Submission 7, p. 6; Law Council, Submission I5, p. 5; Amnesty, Submission II, p. 13; Law Society of South Australia, Submission 5, p. 2.

.. . there is a multiplicity of opportunities for delay in the proceedings. This will have significant impact on the parties as it will make the more expensive and will ultimately limit their access to justice.1 7

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3.13 5 For AMCRAN, the length of time it may take for a lawyer to get a security clearance was of particular concern. 168 Mr Emerton also pointed out that the Bill does not establish a time period in which the Attorney-General must come to a decision in relation to any notice given by the parties or the court of a potential disclosure of information relevant to national security. 169

3.136 Amnesty and HREOC pointed out that the creation of delay may also be problematic in the context of Australia's obligations under international law. Amnesty argued that 'the parties have a right to a remedy in civil proceedings and this right may be adversely affected by the continued delay of the proceedings made possible under this Bill.'170 Similarly, Mr Craig Lenehan from HREOC observed that:

In cases where a person has not been able to access a court in sufficient time to prevent the violation in question taking place, the European Court [of Human has said that that constitutes a violation of the right to an effective remedy. 1 1

3.13 7 Mr Lenehan from HREOC supported the suggestion that time limits could be imposed, either on the Attorney-General to make a decision on the issuing of a certificate within a given time, or to allow the court to impose a time limit on the Attorney-General. However, Mr Lenehan expressed a preference for a court

supervised process, where:

The court would, at a very early stage, be empowered under an amended version of this [A)ct to inquire of the Attorney whether he or she ought to invoke it and would give them a time frame for doing so. That would then ensure fairness for the detained party in that any delar on the part of the Attorney could not be used to derail the proceedings ... 17

3.138 Mr Lenehan also observed that it would be possible to seek a court order (a writ of mandamus) to compel the Attorney-General to make a decision under the Act. However, he noted that this would in itselfbe time consuming. 173

3.139 As noted earlier, the potential for delay could be of particular concern in relation to certain urgent proceedings. For example, AMCRAN and Mr Patrick

167 Submission II, p. 14.

168 Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April2005, p. 19.

169 Submission 8, p. 17.

170 Submission II, p. 14.

171 Committee Hansard, 13 April 2005, p. 25 .

172 Committee Hansard, 13 April 2005, p. 26.

173 Committee Hansard, 13 April 2005 , p. 26.

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Emerton both raised the situation of a person wanting to challenge the lawfulness of a warrant for detention under the ASIO Act, where the detention itself only lasts for seven days. 174

AMCRAN commented that challenging such detention would be:

... almost impossible in a time frame of seven days. For starters, the lawyer has to be security cleared if he is to be there in the first place, as I understand it. If the person did not have a lawyer present they would have to get a lawyer. The lawyer that they chose may not have security clearance. A closed hearing would then have to be conducted. It is unrealistic that someone could, within the seven day time frame, raise a court case and have it heard while they are being detained. It is basically automatic that they will be detained for seven days if that is what the prescribing authority allows. 175

3.140 Similarly, Mr Emerton observed:

In a time-critical administrative law action such as a suit to challenge the legality of detention by ASIO, the way that this particular regime of certificates creates automatic adjournments and gives the Attorney-General or the delegated minister so much power to intervene and control the way the action evolves at that stage strikes me as really worrying.176

3.141 The ALRC also acknowledged that the Bill could potentially result in delays and additional costs. However, Professor Weisbrot also pointed out that:

One of the central pieces of logic in the legislation, which is also reflected in the ARLC's recommendations, is that where classified [or] security sensitive material is likely to be an issue in a proceeding it be notified early and brought right up to the start of the proceeding or preferably pretrial. Hopefully some of those matters could be dealt with more quickly in that way.J77

3.142 Professor Weisbrot also noted that, in its report, the ALRC had suggested a range of measures that the courts could use to try to ensure that trials proceed as quickly and efficiently as possible, including redaction; and having sensitive witnesses appear behind screens or in some other concealed form. Professor Weisbrot also observed that 'nevertheless, there will inevitably be some delay. Delay is a feature of our court proceedings generally.'178

174 Submission 8, p. 17; see also Committee Hansard, 13 April 2005, p. 5.

175 Dr Waleed Kadous, AMCRAN, Committee Hansard, 13 April 2005, p. 17.

176 Committee Hansard, 13 April 2005, p. 5.

177 Committee Hansard, 13 April 2005, p. 10.

178 Committee Hansard, 13 April2005, p. 10.

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3.143 The Law Council submitted that the Attorney General's Department and other relevant agencies should be properly resourced so that the processes in the Bill do not lead to increased court hearing times and lengthy delays in the judicial system. 179

3.144 As to delays in relation to security clearance procedures, Professor Weisbrot from the ALRC noted that it had received assurances from the Attorney-General's Department that it would try to 'fast-track' security clearances where they were required in relation to criminal or civil proceedings. Professor Weisbrot further observed the experience in the United States (US) indicated that, while the ordinary time frame for a security clearance was substantial, when it came to court proceedings, clearances were processed quickly in a more limited timeframe. 180

3.145 In response to the committee's questions on this issue, a representative of the Attorney-General's Department noted that the Attorney General's role in the closed hearing was described as 'an intervener' in the Bill. An intervener in proceedings can have the costs of those proceedings awarded against them to the benefit of the litigants in the original proceedings. 181 In the same vein, the Law Society of South Australia noted that, while the Bill may increase the costs of litigation:

To some extent this can be ameliorated by cost orders aflainst the Commonwealth where it seeks to intervene or where it is a party. 82

3.146 The Explanatory Memorandum also notes that some attempts have been made in the provisions of the Bill to reduce delays in relation to civil proceedings. For example, the procedures where a witness may disclose security sensitive information in giving evidence are different to the procedures in criminal proceedings. According to the Explanatory Memorandum, 'this departure from the procedure for criminal proceedings will seek to reduce delays and adjournments during the civil proceedings.'183

3.147 In response to the committee's questions as to whether litigants (such as in the area of family law) could use the Bill to deliberately increase delays and costs in proceedings, the Attorney-General's Department responded that 'parties to proceedings cannot themselves invoke the application of the legislation. This is a matter for the Attorney-General to decide.' The Attorney-General's Department also submitted that:

The Government will monitor the practical operation of this new regime in criminal and civil proceedings. The Government will consider any

179 Submission 15, p. 5; see also Mr Peter Webb, Law Council, Committee Hansard, 13 April 2005 , p. 28.

180 Committee Hansard, 13 April2005, p. 10.

18 1 Committee Hansard, 13 April2005, p. 38.

182 Law Society of South Australia, Submission 5, p. 2.

183 Explanatory Memorandum, p. 1.

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amendments to the regime which it considers appropriate to ensure the efficiency of the process, whilst protecting Australia's national security.184

The committee's view

3.148 The committee notes the criticisms that the Bill has the potential to result in increased delays and costs. The issue of delay was also raised in relation to the Criminal Proceedings Bill. The committee encourages the Attorney-General's Department to monitor the operation of the Bill in practice, and to consider provisions imposing time limits in the future if necessary.

Appointment of security officers

3.149 The ALRC recommended that, in any proceeding in which classified and security sensitive information may be used, a specially trained security officer should be made available to the court to assist in the management and protection of security information. 185 The ALRC noted that this proposal was modelled on an existing scheme in the US. According to the ALRC, the US scheme 'has proved to be very successful and has received strong support from all quarters.t1 8 Professor David Weisbrot elaborated on this:

.. . one of the reasons that the proceedings operate reasonably well in the federal courts there is that they have trained court security officers who are able to explain to counsel for both sides exactly what their obligations are and how not to make mistak.es ... 187

3.150 Under the ALRC's proposed scheme, the security officer would:

• ensure that the court and the parties are fully informed about the proper handling of such sensitive information; ensure that appropriately secure facilities exist for transporting and/or storing the information when the court is not in session; and

• facilitate the application and vetting process for any person (such as counsel) who requires a security clearance in order to see the material. 188

3.151 The ALRC suggested that such security officers would be trained by the Attorney-General's Department and be available for assignment to a court as needed. The ALRC also noted that this proposal received strong support in submissions and consultations made during its inquiry.189

184 Submission 16, p. 4.

185 Submission 6, p. 5; see also Professor George Williams and Dr Ben Saul, Submission 10, p. 2.

186 Submission 6, p. 5.

187 Committee Hansard, 13 April2005, pp 9-10.

188 Submission 6, pp 5-6.

189 Submission 6, p. 6.

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3.152 Mr Peter Webb from the Law Council expressed qualified support for this proposal:

.. .if the role of that sort of person were confmed to process issues-for example, giving advice about how to handle information and so on-that may well be useful. If in fact the role went further than that, I think we would have serious misgivings about a role that extended beyond simply the giving of advice about process and handling .190

3.153 In response to the committee's questions on this proposal, a representative from the Attorney-General's Department stated that:

It is certainly envisaged that the Protective Security Coordination Centre [PSCC] would be available to provide ongoing advice to courts, legal representatives and litigants on the measures that should be taken to protect this information and that some training would be available if the courts were to seek to have staff specially trained by the PSCC .. . 191

The committee's view

3.154 The committee supports the ALRC's proposals in relation to the provision of court security officers to assist the court in relation to the proposed regime. The committee also recognises the Attorney-General's Department's suggestion that the Protective Security Coordination Centre may have a role to play in training existing court officers.

Restrictions on judicial review

3.155 Some submissions raised concerns with the provisions in Part 2 of the Bill, which amend the ADJR Act to limit jurisdiction for judicial review of a decision by the Attorney-General to grant a certificate under the Bill. 192 Victoria Legal Aid observed that:

In effect the Bill increases the government's powers and reduces mechanisms to monitor the exercise of those powers. Such restrictions are in clear contravention of the principle of natural justice. 193

3.156 Similarly, the Federation of Community Legal Centres (Vic) was concerned that:

By exempting the Attorney-General's decision from judicial review, the Bill gives the government extensive powers without providing any mechanism to monitor the exercise of those powers. 194

·

190 Committee Hansard, 13 April 2005, p. 31.

191 Committee Hansard, 13 April2005, p. 38.

192 See, for example, Victoria Legal Aid, Submission 14, p. 2; PIAC, Submission 7, p. 4; Federation of Community Legal Centres (Vic), Submission 9, p. 3.

193 Submission 14, p. 2.

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3.157 PIAC also opposed these provisions because, in their opinion, the Bill would already give the executive too much control over the decision making of judicial officers. 195

The committee's view

3.158 The committee notes concerns that the Bill will exempt the

Attorney-General's decision in relation to a certificate from review under the ADJR Act. However, the committee recognises that this is consistent with the position for the criminal proceedings regime.

Sunset clause

3.159 The Australian Press Council suggested that a sunset clause be inserted into the Bill so that the legislation lapses in 2007. The Australian Press Council felt the regime could then be renewed for three year terms if necessary, and after full parliamentary debate. 196 Dr Waleed Kadous from AMCRAN also expressed support for a sunset clause, arguing that the Bill's impact on the system is not yet clear' and that:

... because of the changing nature of the international security environment things can move very quickly, and I think a review in three years time to evaluate the impact of this legislation would be prudent. 197

3.160 In response to the committee's questioning on the issue, HREOC observed that a sunset clause would address some of their concerns, and would assist in keeping the legislation within the limits of 'proportionality' for the purposes of the ICCPR. However, HREOC also noted that:

... while such a clause may be desirable for those reasons, it will not in itself be decisive in determining whether any proportionality requirements are met. That is a matter which will depend upon the substantive provisions of the Bill, the purpose they are said to serve and the relevant circ*mstances. The Commission is therefore primarily concerned that the Bill be amended to incorporate the safeguards recommended by the Commission.198

3.161 As noted earlier, the Attorney-General's Department submitted that, in any case, the operation of the legislation would continue be monitored. 199

194 Submission 9, p. 3.

195 Submission 7, p. 4.

196 Submission 13, p. 3.

197 Committee Hansard, 13 April2005, p. 16.

198 Submission J2B, p. 5.

199 Committee Hansard, 13 April2005, p. 32; also Submission 16, p. 4.

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The committee's view

3.162 The committee notes suggestions for a sunset clause to be inserted into the Bill. However, the committee also recognises that it remains unknown how key provisions in the Bill - especially the stay provisions - will actually operate in practice and impact on parties in civil proceedings. The committee's view is that,

subject to the recommendations made elsewhere in this report, the regime contained in the Act and proposed by this Bill ought to operate for a relatively short period after which the regime's operation and impact can be reviewed and evaluated. Any such a report would be more comprehensive than the reports to Parliament currently required under section 4 7 of the Act. The committee does not see the need for the legislation as a whole to be subject to a sunset clause.

Recommendation 10

3.163 The committee recommends that the Bill be amended to insert a requirement that, as soon as practicable after the end of 18 months from the date of the Bill's commencement, the Minister must cause to be laid before each House of Parliament a comprehensive report on the operation of the Act (including the provisions of the Bill).

Provisions of the Migration Act

3.164 HREOC also raised concerns in relation to the existing provisions of the Migration Act 1958 (Migration Act). It observed that the provisions of the Migration Act go a step further than the Bill and permit a court to rely on 'secret evidence' that is not disclosed to a for the purposes of a substantive hearing regarding visa

cancellation decisions.2 0 Mr Lenehan from HREOC explained further that the Migration Act: ... goes even further than that and allows the minister to test the waters, if you like, by disclosing the material in question to the court and then asking

the court whether it is prepared to make orders for the non-disclosure of the information. In the event that the court does not make those orders, then the information can be withdrawn and not used in the substantive proceedings?01

3.165 HREOC noted that these provisions had been criticised in the ALRC report, and argued that this approach should only be permitted in the most extraordinary circ*mstances. 202 In response to the committee's questions in relation to this issue, a representative of the Attorney-General's Department stated:

200 Submission 12, pp 15-16.

201 Committee Hansard, 13 April2005, p. 25.

202 Submission 12, pp 15-16; see also Mr Craig Lenehan, HREOC, Committee Hansard, 13 April 2005, pp 21 and 25.

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... in deciding whether or not to apply the [National Security Information] [A]ct to the proceedings, great regard would be given to the adequacy of other mechanisms to protect the information ... for example, in many cases the application of public interest immunity would be considered sufficient ·

. . . in a case where these provisions of the Migration Act applied, it is possible that those provisions would be considered to be adequate to protect the information in that particular case. 203

3.166 However, the representative also conceded that there is nothing in the Bill which expressly requires the Attorney-General to consider mechanisms in other legislation. 204

The committee's view

3.167 The committee notes concerns in relation to the provisions of the Migration Act, but considers that they are outside the scope of this Bill.

Conclusion

3.168 As with the Criminal Proceedings Bill, the committee recognises that this Bill attempts to reconcile two important objectives that in some cases may conflict­ promoting and upholding the right to a fair trial and maintaining national security by protecting sensitive information during civil proceedings. The committee has once again made a number of recommendations intended to ensure that there are adequate safeguards in the proposed legislation to balance these two objectives.

3.169 On balance, the committee is of the view that the Bill should be passed, subject to the committee's recommendations. The committee notes that its recommendations will allow the courts a greater level of discretion in decision-making under the proposed regime. However, the committee also encourages the Attorney-General's Department to monitor the operation of the national security information protection regime provided for under the Act and this Bill in order to ensure that an appropriate balance is maintained. The committee considers that parliament should also take an active role in monitoring the future operation of the legislation.

3.170 The committee is mindful of possible arguments that inconsistency may arise if amendments are made to the civil proceedings regime in this Bill in isolation from the provisions of the Act which apply to criminal proceedings. In its view, these arguments do not carry weight. It is axiomatic that different procedures do apply and operate in criminal and civil proceedings. It is stressed that the committee holds the views expressed in its earlier report concerning the National Security Information (Criminal Proceedings) Bill 2004. However, it acknowledges that the recommendations in that report concerning criminal proceedings were not adopted by

203 Committee Hansard, 13 April 2005, p. 33.

204 Committee Hansard, 13 April 2005, p. 34.

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Government and, moreover, that the committee's responsibility is to address the Bill before it.

Recommendation 11

3.171 The committee recommends that, subject to the above recommendations, the Senate pass the Bill.

Senator Marise Payne Chair

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340

Additional Comments and Points of Dissent

Senator Brian Greig On behalf of the Australian Democrats

The Australian Democrats share the many concerns raised by the Committee in relation to this Bill. In particular, we are concerned that the Bill has the potential to :

• undermine procedural fairness in the context of civil proceedings and limit the right to a fair and public hearing;

• compromise the right to access effective remedies in relation to violations of human rights;

• breach Australia's international human rights obligations;

• decrease, rather than increase, Australia's national security;

• generate delays in civil proceedings;

• increase the cost of civil proceedings;

• blur the separation of powers between the Executive government and the Judiciary; and

• reduce public confidence in the rule oflaw.

The Australian Democrats acknowledge that the government has had to grapple with some difficult issues in drafting this Bill, however we do not agree with the Attorney­ General's assertion in his Second Reading Speech that, "the government has yet again struck the right balance between protecting national security and protecting the rights of parties".

We are conscious of the many and varied civil proceedings which could potentially be covered by this Bill- including urgent applications to challenge the validity of detention by the Australian Security Intelligence Organisation, family law proceedings involving intelligence officers, defamation proceedings in cases where the Government has defamed an individual, and proceedings for the review of an administrative decision, just to name a few.

In many cases, the Executive government will be the defendant or the respondent in the proceedings, yet it will also have the power to determine whether the national security information regime applies or not. This is concerning, given the significant consequences of a decision to issue a notice under clause 6A.

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The Democrats believe that the proposed regime represents an inappropriate interference by the Executive government in the processes of Australian courts.

Even if the interference is not inappropriate, there is a risk that it will be perceived to be so, thereby undermining public confidence in the rule oflaw.

The Government's stated intention in introducing this Bill is to protect Australia's national security. While much has been said about the broad definition of 'national security' in the Bill (and the Democrats share the concerns that have been expressed about the breadth of that definition), it is also relevant to consider what the Australian community sees national security as embodying. This is because the community's concept of national security will determine its perceptions about the appropriateness of the Bill.

The Democrats suggest that, in the minds of many Australians, national security means the protection ofthe physical safety and fundamental rights of all Australians. Given that national security involves protecting, not just physical safety, but also freedom and liberty, we should ask ourselves whether national security initiatives which infringe the rights of Australians are actually compromising, rather than strengthening, Australia's national security.

In the context of this Bill, the Democrats are concerned that the Bill has such a profound impact on the rule of law and the rights of Australians that it may actually be detrimental to Australia's national security.

Having carefully considered the provisions of this Bill, the Democrats have concluded that the Bill is deeply flawed. At best it is unworkable, but it's also potentially dangerous. Consequently, we do not believe that it should be passed- even if it is amended in accordance with the Committee's recommendations.

However, if the Bill is to be passed by the Parliament, it will be critical for the Committee's recommendations to be implemented. In addition, the Democrats believe that a sunset clause is crucial. Given the significant implications of this Bill for the independence of the courts, the rule of law and the rights of Australians, it is important for the Bill to be fully debated by the Parliament if it is to continue beyond three years.

It will also be important to monitor the operation of the legislation carefully during that period of time and, in this respect, the Democrats welcome the Committee's recommendation for a formal review after a period of 18 months. It will be particularly important for such a review to test the Government's proposition that it has struck an appropriate balance between protecting national security and protecting the rights of parties. The evidence may well prove otherwise, in which case the Parliament may conclude that there is no justification for the legislation to be re­ enacted.

342

Recommendation 1: That the Bill be opposed.

Recommendation 2: That, if the Bill is not to be opposed, it be amended in accordance with the Committee Recommendations.

Recommendation 3:

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That, if the Bill is not to be opposed, it be amended to include a sunset clause which provides that the legislation will cease to have effect three years after it commences.

Senator Brian Greig Australian Democrats

343

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344

APPENDIX I

ORGANISATIONS AND INDIVIDUALS THAT PROVIDED THE COMMITTEE WITH SUBMISSIONS

1 Australian Civil Liberties Union

2 Lesbian & Gay Solidarity (Melbourne)

3 Australian Muslim Civil Rights Advocacy Network

4 Australian Security Intelligence Organisation

5 The Law Society of South Australia

6 Australian Law Reform Commission

7 Public Interest Advocacy Centre

8 Mr Patrick Emerton

SA Mr Patrick Emerton

9 Federation of Community Legal Centres (Vic) Inc

10 Professor George Williams and Dr Ben Saul

11 Amnesty International Australia

12 Human Rights and Equal Opportunity Commission

12A Human Rights and Equal Opportunity Commission

12B Human Rights and Equal Opportunity Commission

13 Australian Press Council

14 Victoria Legal Aid

15 Law Council of Australia

16 Attorney General's Department

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APPENDIX2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE Canberra, Wednesday 13 April 2005

Mr Patrick Emerton (Teleconference)

Faculty of Law, Monash University

Australian Law Reform Commission

Professor David Weisbrot, President

Ms Kathleen Connors, Legal Officer

Australian Muslim Civil Rights Advocacy Network

Dr W aleed Kadous, Co-Convenor

Ms Agnes Chong, Co-Convenor

Human Rights and Equal Opportunity Commission

Mr Craig Lenehan, Deputy Director Legal Services

Mr Jonathon Hunyor, Senior Legal Officer

Law Council of Australia

Mr Peter Webb, Secretary-General

Attorney-General's Department

Ms Maggie Jackson, Special Adviser, National Security and Criminal Justice Group

Ms Kirsten Kobus, Acting Principal Legal Officer, Security Law Branch

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348

The Senate

Rural and Regional Affairs and Transport Legislation Committee

Provisions of the AusLink (National Land Transport) Bill 2004 and the AusLink (National Land Transport-Consequential and Transitional Provisions) Bill 2004

May 2005

349

© Commonwealth of Australia

ISBN 0 642 71516 5

This document was prepared by the Senate Rural and Regional Affairs and Transport Legislation Committee, and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

350

Membership of the Committee Members

Senator the Hon. Bill Heffernan LP, New South Wales Chair

Senator Geoffrey Buckland

Senator John Cherry

Senator Jeannie Ferris

Senator Julian McGauran

Senator Ursula Stephens

ALP, South Australia Deputy Chair

Participating Members

Senator Abetz Senator Allison Senator Bishop Senator Boswell Senator Brown

Senator G Campbell Senator Carr Senator Chapman Senator Coonan

Senator Eggleston Senator Evans Senator Faulkner

Committee Secretariat

AD,QLD

LP, South Australia

NP A, Victoria

ALP,NSW

Senator Ferguson Senator Greig Senator Harradine Senator Hogg Senator Hutchins Senator Knowles Senator Lightfoot Senator Ludwig Senator Lundy Senator S MacDonald Senator Mackay Senator Mason

Ms Maureen Weeks, Secretary Mr Geoff Dawson, Principal Research Officer Ms Rosalind McMahon, Executive Assistant

Parliament House, Canberra Telephone: (02) 6277 3511 Facsimile (02) 6277 5811

Internet: Email: www.aph.gov .au/senate rrat.sen@aph.gov .au

iii

351

Senator McLucas Senator Nettle Senator O'Brien Senator Payne Senator Ray Senator Santoro Senator Tchen Senator Watson Senator Webber

352

Terms of Reference

Referred by the Senate on 9 February 2005 on the adoption of the Selection of Bills Committee Report No.1 of2005:

The provisions of the AusLink: (National Land Transport) Bill 2004 and AusLink (National Land Transport - Consequential and Transitional Provisions) Bill 2004 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 12 May 2005.

v

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354

TABLE OF CONTENTS

Membership of the Committee ........................................................................ iii

Terms of Reference ............................................................................................. v

Table of Contents ............................................................................................. vii

Chapter 1 ............................................................................................... ~ ............. 1

Conduct of the inquiry ............................................................................................ 1

The AusLink White Paper ...................................................................................... 1

The bill .................................................. .. ........................................................... ..... 2

Funding categories .......... ..................................................................................... 2

National Land Transport Plan and Corridor Strategies ...................................... .4

Comment of Scrutiny of Bills Committee .............................................................. 5

Scope of the report ...•.............................................................................................. 5

Chapter 2 ............................................................................................................. 7

Background: Commonwealth road and rail funding ............................................ 7

Commonwealth road funding ................................................................................. 7

Commonwealth rail funding ........................................................... ........................ 9

Comment ................................................................................... ........................... 11

Chapter 3 ....................................................... ~ .................... ............................... 13

Issues raised in submissions ................................................ ........ ........................... 13

'Shared responsibility' and bilateral agreements .......... .............. ......................... 13

Comment .................................................................... ... ........... ......................... 15

Arguments about the total level of funding ......... .... ...... .... ..... .............................. 16

Comment ...................................................... · .. ....... ....... .......... ... ........................ 18

Giving adequate priority to maintenance ................ .. ... ........... ..................... ..... 19

Comment ................................................. : .......... ........ ............ .. ......................... 20

Need for clear principles for prioritising projects .... .... ................ ......... ............... 21

Comment .................................................................. .............. ... .......... ... ....... .... 22

Non-economic considerations ...................................... .... : ........ ........................ 23

Comment ................................................................... ..... ........ ... ........................ 24

Need for efficient charges for use of infrastructure .... ... ............. .... ... .................. 25

vii 355

Comment ........................................................................................................... 28

Improving urban transport infrastructure ............................................................. 28

Comment ....... ... ............ ................ ......... .. .. ..... ............ ....................................... 30

Extending Roads to Recovery to public transport, rural airports runways etc ..... 31 Comment ........................................................................................................... 32

Whether there should be a National Transport Advisory Council ....................... 33 Comment ....................................... ... .. ..... .. ......... ....... .............. ............... .. ......... 34

Research and information .. ................ .... .. ............... .. .. ................ ...... .... ..... ... ........ 35

Recommendation ................................................................. ..... ... .............. ..... ...... 36

Additional comments by Labor Senators ....................................................... 37

National Highway Funding .................................................................................. 37

Removing Politics from the Strategic Regional Projects Program ...................... 37 National Transport or Infrastructure Advisory Council .. ........................ ............. 38

Additional Comments - Australian Democrats •...•........................................ 39

Introduction ................... .......... ...... ... .... ........ ................ ........ .................... ....... ..... 39

Funding Infrastructure - Getting the Balance Right ...................... .................. .... 40

Making AusLink Transparent, Accountable and Strategic .. .. .... ...... .................... 40

Appendix 1 ......................................................................................................... 43

List of Submissions ................................................................................................. 43

Appendix 2 ......................................................................................................... 45

Witnesses who appeared before the Committee at the Public Hearings ........... 45

Appendix 3 ......................................................................................................... 47

Additional information .......................................................................................... 47

viii 356

Chapter 1

Conduct of the inquiry

1.1 The inquiry is into the AusLink (National Land Transport) Bill 2004 and the AusLink (National Land Transport - Consequential and Transitional Provisions) Bill 2004. The first is the substantive bill of interest, and references to 'the bill' in this report refer to it.

1.2 The inquiry was referred by the Senate on 9 February 2005 on the

recommendation of the Selection of Bills Committee. The Selection of Bills Committee noted as issues for consideration:

1. Questions about the changes to the Commonwealth Government's funding responsibility for construction and maintenance of infrastructure on what was formerly defmed as the National Highway Network.

2. The need for a National Infrastructure Advisory Council, involving stakeholder and expert representation and input into planning.

3. Examine the extension of the criteria for Roads to Recovery projects to include public transport, cycling, walking infrastructure and regional airport runways.

1.3 The Committee advertised the inquiry in The Australian and invited submissions from State/Territory governments and many peak bodies. The Committee received 29 submissions (see Appendix 1) and held two public hearings (see Appendix 2). The Committee thanks submitters and witnesses for their contribution.

Submissions and transcripts of the Committee's hearings are available on the Parliament's internet site at www.aph.gov.au

The AusLink White Paper

1.4 The bill implements the Government's June 2004 AusLink White Paper on Commonwealth land transport infrastructure funding and related matters. The White Paper is the Government's response to predicted strong growth in transport demand, including a predicted doubling of road freight over the next 20 years. The White Paper

'sets out $11.8 billion in [Commonwealth] land transport spending [over five years], including a massive upgrade of Australia's east coast road and rail systems. ' 1

1.5 According to the White Paper, AusLink has the following core components:

Hon. J. Anderson, Minister for Transport and Regional Services, AusLink: building our national transport future. media release 7 June 2004.

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• a defined National Network of important road and rail infrastructure links and their intermodal connections; 2

• the National Land Transport Plan which outlines the Government's approach to improving and integrating the National Network and the investments it will make;

• a single funding regime, under a new AusLink programme, for the National Network;

• separately earmarked funding for local and regional transport improvements;

• new legislative, intergovernmental and institutional mechanisms. 3

1.6 Other important new policies in AusLink are:

• the proposal for 'shared responsibility' with the States for funding the National Network (as opposed to the Commonwealth's former full funding of construction and maintenance on the National Highway System);

• a commitment to 'corridor strategies' which will plan spending in a corridor in an integrated way with a common project approval regime for road, rail and intermodal projects;

• for the first time, a significant Commonwealth contribution to upgrading the Melbourne-Sydney-Brisbane railway.

1. 7 AusLink is not about air or sea transport as such, but is concerned with intermodal facilities and links to ports and airports. The White Paper comments:

The Australian Government will closely monitor prospective trends and developments in air and sea transport. It aims to ensure that nationally significant infrastructure is planned and developed so that the efficiency of intermodallinkages continues to be enhanced. 4

The bill

Funding categories

1.8 The bill defines six categories of funding:

• AusLink National Projects. These relate to roads, railways or intermodal transfer facilities which are on the National Land Transport Network which the Minister must declare (sections 5,10) (The proposed National Land Transport Network is shown in the AusLink White Paper).

2 'Intermodal terminal': a point at which products or commodities move between transport modes - for example, rail to road.' AusLink White Paper, p.l30.

3 Dept of Transport and Regional Services, AusLink White Paper, 2004, p.l5.

4 AusLink White Paper, p.120.

3

AusLink Transport Development and Innovation Projects. These relate to planning and research related to development of the National Land Transport Network (section 30).

• Land transport research entities whose activities are likely to improve land transport operations (section 46).

AusLink Strategic Regional Projects. These relate to roads, railways or intermodal transfer facilities which are not on the National Land Transport Network. Tests for inclusion include (among other things) whether the facility is 'regionally significant'; whether it will improve

safety; whether it will improve access for regional communities to services and employment (section 55).

• AusLink Black Spot Projects. These relate to sites, not on the National Land Transport Network, which contribute to serious motor vehicle crashes involving death or injury (section 71). This continues the present Black Spot program.

AusLink Roads to Recovery Program. This continues the present program under the Roads to Recovery Act 2000, in which funds are given directly to local councils, according to a formula, for spending on roads (section 87).

1.9 For each of these categories the bill-• empowers the Minister to approve a project/recipient as falling within the category; • gives broad criteria to guide the Minister on whether it is appropriate to

approve a project/recipient; and

• empowers the Minister to fund an approved project/ recipient.

1.10 The criteria to guide the Minister on whether it is appropriate to approve a project/recipient are expressed at a high level of generality. Examples are:

• for National Projects: 'the extent to which the project will improve the efficiency, security or safety of transport operations .. .' (section 11 (b)) ;

• for Strategic Regional Projects: 'the extent to which the project is likely to improve a road, railway or inter-modal facility that is regionally significant .. .' (section 55 (b))

1.11 These criteria are not mandatory, and the Minister's discretion to approve projects is wide: provisions are in the form 'the matters to which the Minister may have regard ... include, but are not limited to ... ' 5

5 This formula does not apply to the Roads to Recovery provisions.

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1.12 Funding may be conditional on there being a funding agreement between the parties. This would enable the Commonwealth to set detailed conditions on funding. There are no constraints on the type of conditions that could be included.

1.13 There are general conditions relating to accountability: recipients must spend the money on the approved project; must provide audited financial statement; must provide information on request, etc.

1.14 The bill does not itself appropriate money. This would be done through annual budget appropriations. Proposed Commonwealth spending is detailed in the White Paper. The AusLink (National Land Transport - Consequential and Transitional Provisions) Bill 2004 contains an appropriation to cover the purposes of the AusLink bill for the balance of 2004-05.

1.15 The Australian Land Transport Development Act 1988, which the AusLink bill will replace, contains a provision allowing the Minister to fund urban public transport projects which 'are likely to result in the reduction of the traffic on, or the wear and tear affecting any road' (section 7C). The AusLink bill does not contain any similar provision.

National Land Transport Plan and Corridor Strategies

1.16 The Minister may determine a National Land Transport Plan which 'sets priorities for expenditure on the National Land Transport Network' (section 4). This connects to project approval in that the matters which the Minister may have regard to in deciding whether it is appropriate to approve a project include 'the National Land Transport Plan' (section ll(b)). The bill makes no comment on what sort of things the plan should include.

1.17 The Minister may determine 'corridor strategies'. A corridor strategy 'relates to land transport issues affecting a corridor between two places . . . included in the National Land Transport Network.' (section 4). This connects to project approval in that the matters which the Minister may have regard to in deciding whether it is appropriate to approve a project include 'any relevant Corridor Strategy' (section

II (b)). The bill makes no comment on what sort of things a corridor strategy should include. According to the White Paper corridor strategies will allow 'managing the total transport needs of a corridor by the most efficient means available, rather than a modally based approach'. 6

1.18 The White Paper indicates that the Government intends that the White Paper should be the basis of the first national plan, with a view to its evolutions in future versions:

6 AusLink White Paper, p.22.

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Future versions of the plan will be based on priorities identified in corridor strategies, which will be developed progressively for each of the major corridors that make up the AusLink National Network. 7

Comment of Scrutiny of Bills Committee

5

1.19 The Senate Standing Committee for the Scrutiny of Bills has a brief to consider all bills as to whether they 'insufficiently subject the exercise of legislative power to parliamentary scrutiny' among other things.

1.20 The Scrutiny of Bills Committee was concerned by a number of provisions which exclude the Minister's determinations from being subject to disallowance by parliament. These relate to determining the National Land Transport Network (section 5(4)), and various provisions about approving projects and approving Commonwealth funding of projects.

1.21 The Scrutiny ofBills Committee commented:

One difficulty the Committee has found in considering this legislation is that, in a number of areas, there is little provided by way of explanation to justify the exclusion of instruments from the usual tabling and disallowance regime. As a general rule, the Committee would expect the explanatory

memorandum accompanying a bill to provide sufficient explanation to enable the Committee and, indeed, the Parliament to assess the need for such an exclusion. 8

Scope of the report

1.22 The bill, considered narrowly, is essentially a machinery provision. It defmes the types of projects which the Minister may fund, and sets accountability conditions (funding recipients must provide audited financial statements etc.).

1.23 The bill does not itself set budgets, or define the National Network, or set the methodology of corridor strategies, or defme criteria for project approval at a level of detail useful for prioritising projects. 9 These are matters for decision pursuant to government policy. Many relevant policies are in the AusLink White Paper. Achieving their good intentions will depend greatly on the detailed implementation.

1.24 Most submissions were mostly concerned about implementation of the policies at the administrative level, rather than the bill considered narrowly. Some also dealt with matters outside the self-declared scope of AusLink (for example, whether

7 AusLink White Paper, p.l9.

8 Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No. 1 of2005, 9 February 2005 .

9 Some clauses do suggest criteria at a high level of generality: for example, clause 11 on approving National Projects: ' ... the extent to which the project will improve the efficiency, security or safety of transport operations on the National Land Transport Network ... '

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the Commonwealth should be involved in developing urban public transport infrastructure). This report mentions the main issues raised in the hope that the submissions, and the Committee's comments, will help the Government's deliberation on the policy matters, such as the development of the National Land Transport Plan.

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Chapter 2

Background: Commonwealth road and rail funding

2.1 Building, maintaining and operating roads and railways is a responsibility of the States and Territories. 1 For many years the Commonwealth has contributed heavily to improving roads, by way of grants to the States/Territories or direct to local government. The Commonwealth has contributed to improving railways to a much smaller extent.

Commonwealth road funding

2.2 The Commonwealth has made grants to States for roads since 1922. It started full funding of a National Highway System in 1974. At the beginning of the 1990s the Commonwealth funded roads in the categories: the National Highway, national arterial roads, state arterial roads, and local roads. After various changes during the

1990s, the Commonwealth now (pre-AusLink:) funds roads in the categories:

the National Highway

roads of national importance

• Black Spots

• local roads.

2.3 The National Highway, roads of national importance, and Black Spots are funded on a project by project basis. Local roads are funded by direct grants to local councils under the Roads to Recovery Act 2000, and by untied grants 'through' the States, under the Local Government (Financial Assistance) Act 1995, on the understanding that they will be spent on roads. The local roads grants are shared among the councils by a formula. 2

2.4 In the 25 years to 1999 the Commonwealth spent $43 billion on roads (including untied grants to States with a view to road expenditure; 1998-99 dollars). Of that, $18 billion was for the National Highway System, including $3 .7 billion for the Hume Highway alone. 3 Since 1997-98 Commonwealth road expenditure has been:

Subject to transfer of some railways to privati sed track owners in recent years. Most of this has been by long lease.

2 The formula differs slightly between Roads to Recovery and other local roads grants.

3 P. Laird & others, Back on Track: rethinking transport policy in Australian and New Zealand, 2001 , p.9, 199.

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Table 1: Commonwealth road spendin 1997-98 to 2003-04 $million 1997- 1998- 1999- 2000- 2001- 2002- 2003- total

current dollars 98 99 00 01 02 03 04

National Hwy 706 752 632 697 784 763 705 5039

Roads of National 109 123 184 135 234 214 227 1226

Importance Black Spots 36 37 38 41 42 44 45 283

Roads to 150 302 202 302 956

Recovery State identified 391 397 409* 1197

road grants Local gov' t 370 377 389 406 425 451 462 2880

identified grants other 2 2 3 2 3 9 43 64

TOTAL 1614 1688 1653 1432 1790 1684 1785 11646

Totals may not add due to rounding. 2003-04 is an estimate. *Rolled into GST grants to States from 2000-01, so figures before and after are not strictly comparable. source: DOTARS, ALTD programme progress reports various years. DOTARS, Portfolio Budget Statements, 2003-04. Bureau of Transport and Regional Economics, information sheet 23: Public road-related expenditure and revenue in Australia (2004) . Parliamentary Library Bills Digest on AusLink (National Land Transport) Bill2004.

2.5 In assessing the 'right' amount of road spending in an economic sense, the relevant figtire is of course not Commonwealth spending, but total spending. Since 1988-89 total road spending by government has been:

Table 2: Total road spendine by eovernment 1988-89 to 2001-02 $million Commonwealth State Local Total Cth as per

current dollars cent of total

1988-89 1232 1603 1431 4266 29%

1989-90 1358 1908 1635 4901 28 %

1990-91 1596 2224 1556 5376 30%

1991-92 1720 2046 1570 5337 32%

1992-93 2177 1877 1706 5760 38%

1993-94 1552 2207 1636 5396 29%

1994-95 1535 2264 1503 5303 29%

1995-96 1602 2616 1654 5872 27%

1996-97 1623 2905 1845 6373 25 %

1997-98 1636 3378 2000 7014 23 %

1998-99 1707 3246 2329 7282 23%

1999-00 1675 3135 2585 7395 23%

2000-01 1458* 3911 2254 7624 19%*

2001 -02 1821 3545 2214 7580 24%

Source: Bureau of Transport and Regional Economics, information sheet 13 : Public Road-related expenditure and revenue in Australia 1999. Information sheet 23 : Public road-related expenditure and revenue in Australia (2004) . Totals may not add due to rounding. *State identified road grants were rolled into GST grants to States from 2000-01, so figures before and after are not strictly comparable. Figures for Commonwealth spending in this table exceed those in table 1 because of the inclusion of Federal Interstate Registration Scheme amounts.

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Note: 'These figures provide a picture of the expenditure on roads by each level of government net of transfers of funds from higher levels of government ... it is a measure of the financial effort made by each level. .. While an effort has been made to estimate the expenditure on road construction and maintenance only, there is still some expenditure included on administration, regulation and subsidies.' BTRE Information sheet 23, p,l

2.6 Private spending on roads has also become significant in recent years, through privately financed urban tollways. An estimate of total spending on new fixed assets in roads, excluding repair and maintenance, is:

Table 3: Total spending on new fixed assets in roads: 2000-01,2001-02 $million Common- State Local gov' t subtotal: private TOTAL

wealth gov 't

2000-01 883 1953 1486 4322 870 5192

2001-02 1246 1001 1622 3869 l4ll 5280

Source: Bureau of Transport and Regional Economics, Australian Transport Statistics, 2003,2004. Derived from unpublished ABS and DOT ARS data. Figtlr"es differ from those in previous tables because they exclude repair and maintenance.

Commonwealth rail funding

2.7 Commonwealth capital spending on rail, compared with its road funding, has been irregular and, on average, very small. It bas mostly related to particular projects such as gauge standardisation from Adelaide to Crystal Brook and Melbourne (1982, 1995), and the Alice Springs - Darwin railway (200 1-02).

2.8 In the 25 years to 1998-99 the Commonwealth spent $1.2 billion on railways (excluding its subsidy of the operating losses of the then Commonwealth-owned Australian National).4 Since 1997-98 Commonwealth rail expenditure bas been:

Table 4: Commonwealth rail spending 1997-98 to 2003-04 $million 1997- 1998- 1999- 2000- 2001- 2002- 2003- total

current dollars 98 99 00 01 02 03 04

Alice Springs - 55 165 14 234

Darwin railway. mainline track 5 50 46 101

upgrade AusLink 450 450

investment ARTC equity 18 143 161

inlection other 3 7 9 13 9 3 l 46

TOTAL 21 12 59 114 174 17 594 992

source: DOT ARS, various. Parliamentary Library Bills Digest on AusLink (National Land Transport) Bill2004.

4 P. Laird & others, Back on Track: rethinking transport policy in Australian and New Zealand, 2001, p.199.

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2.9 In assessing the 'right' amount of rail spending in an economic sense, the relevant figure is of course not Commonwealth spending, but total spending. It appears that there is no readily available time series information on total rail investment comparable to the figures for roads in table 2 above. This is most unfortunate, and the Committee hopes that the research needed to plan economically sound corridor strategies will remedy this.

2.10 States have from time to time made significant investments in their total rail networks, 5 but overall it appears that most of their efforts are concentrated on maintaining capital city passenger services where the political pressure is highest. For example:

The [NSW] government will rise or fall on what it does about its CityRail. That is where its focus is; not on its regional rail. I think that is throughout the country and that is part of the problem. 6

2.11 In calculating the total State effort to improve rail infrastructure, a complication is that vertically integrated State rail authorities may count as capital expenditure both below rail network improvements and purchase of rolling stock such as urban passenger carriages. The latter is often a high proportion of the total but, however worthy, it is not 'infrastructure' in the AusLink sense. 7

2.12 An estimate of total spending on new fixed assets in railways, excluding repair and maintenance, follows. The figures for roads from table 2 are repeated for comparison.

Table 5: Total spendine on new f"rxed assets in roads and railways: 2000-01 2001-02 $million Common- State Local gov't subtotal: private TOTAL

wealth J!OV't

2000-01 rail 40 223 0 263 46 309

2000-01 road 883 1953 1486 4322 870 5192

2001-02 rail 17 1311 0 1328 485 1813

2001-02 road 1246 1001 1622 3869 1411 5280

Source: Bureau of Transport and Regional Economics, Australian Transport Statistics, 2003,2004. Derived from unpublished ABS and DOT ARS data.

5 For example, Queensland main line upgrading in the 1990s, and Victoria's current Regional Fast Rail projects.

6 Mr B. Nye (Australasian Railway Association), Committee Hansard 18 March 2005, p.25 .

7 The cost of vehicles, whether it is borne privately or publicly, must of course be included in the total economic evaluation of transport alternatives. In the case of fully commercial transport services vehicles/rollingstock, over time, are effectively a consumable, and we may hope that their economic cost is adequately reflected in their fmancial cost to the operator. In comparing purchase of urban buses and trains for subsidised services with private spending on cars the situation is less clear. In both cases environmental aspects, such as the energy embodied in the vehicle, or the problems of disposing of it, should be considered.

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2.13 The AusLink White Paper comments:

It is well-documented that the rail system in Australia has been under­ funded for a long time and its role in handling the nation's freight task has been declining relative to road. The $1.8 billion to be invested in the rail system improvements over the next five years will begin to turn this around. Rail has the potential to substantially increase its share of the freight task if significant improvements are made to rail infrastructure and operational practices are modernised. 8

Comment

11

2.14 The disproportion between Commonwealth spending on road and rail improvement has often been excused by the claim that 'under the Constitution' railways are a State responsibility. This refers to the fact that at Federation railways were left in State ownership.

2.15 In fact both railways and roads are a State responsibility - they are crown land vested in a State.9 Both are also a Commonwealth responsibility insofar as the Commonwealth voluntarily accepts responsibility for helping to improve the national transport network. The fact that the Commonwealth has contributed primarily to improving the national highway system has been a matter of history and political choice.

2.16 After including State, local and private spending, it appears that a very large gap still remains between the rate of capital formation in roads and railways. 10 Whether this balance between road and rail investment is economically optimal appears to be unknown.

2.17 The economically correct rate of investment in each mode depends on many things such as their relative importance in Australia' s total transport task (present and predicted), the quality of their existing assets and the likely trend in the productivity of their use of assets and, therefore, the likely rate of return on further investment.

11 The

Committee is unaware of any past attempt by government to assess these things on a unified basis in order to discover whether the balance of public spending on road and rail is economically sound - that is, whether it directs investment with priority to

8 AusLink White Paper, p.62.

9 In recent years some railways have been transferred to privatised track owners, usually by long term lease.

10 Subject to the qualification that longer time series information comparable to that in table 5 seems to be not available.

11 Road and rail have about equal shares of Australia' s freight transport task in tonne/kilometres (35% and 37% respectively; with 28% sea and 1% air). 86% of the rail share is bulk commodities, mainly coal and ore. AusLink White Paper, p.3. Australasian Railway Association, Australian Rail Industry Report 2003, p.9.

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where the returns are highest, without preconceived bias towards one mode or the other.

2.18 Considering the large amounts of public money involved, this is regrettable. The Committee is optimistic that corridor strategies under AusLink will fill this gap.

2.19 This comment is mainly about the National Network and long distance non­ bulk freight transport, since this is the area where road versus rail choices most arise. 12 The Committee accepts that spending on local roads and regional projects is affected by social policy considerations to do with supporting rural communities. Thus, as a matter of policy, they may take a priority higher than that suggested by a purely economic calculation. However it is still important that these projects should be prioritised in a disciplined way, with economic and non-economic motives clearly distinguished.

12 Most other traffics clearly belong either to rail or road. Rail dominates transport of bulk co=odities. Road dominates non-bulk freight traffic over short distances or on diverse routes with low densities. Road dominates passenger transport except on a few routes in big cities.

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Chapter 3

Issues raised in submissions

3.1 On the whole submissions welcomed and supported AusLink and the present bills. Submissions most strongly approved the overall boost to funding; the promise of integrated assessment of road and rail investment needs on key corridors; and the Commonwealth support for significant rail upgrading on the east coast main line.

3.2 However submissions did raise some concerns, which are summarised here.

'Shared responsibility' and bilateral agreements

3.3 The Commonwealth has, pre-AusLink, accepted full responsibility for construction and maintenance of the National Highway System. AusLink proposes to replace this with 'shared funding' of the National Land Transport Network - that is, States and Territories must contribute. The White Paper justifies this in several ways:

• The AusLink National Network includes links that were State or Territory responsibilities: 'It is the unambiguous position of the Government that such elements of the network should continue to attract funding from States and Territories, at least in proportion to the benefits they obtain.'

• It is right that the parties contribute in proportion to the benefits they obtain: 'The Australian Government will invest in those projects on the National Network that are of national priority and have substantial national benefits. The Government has a clear expectation that States

and Territories will invest in those projects on the National Network which provide benefits at the State or Territory level.'

• If all parties have a stake it will encourage better planning and reduce the risk of cost-shifting. 1

3.4 The Department of Transport and Regional Services (DOT ARS) stressed that AusLink as a whole involves 'large increases' in funding for the National Land Transport Network, and ' ... the Australian Government is continuing to fully fund many projects on the new National Land Transport Network that would have been on the former National Highway System, especially in rural and remote areas. '

2

AusLink White Paper, p.23.

2 Submission 6, DOTARS, p.4.

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3.5 Exact funding arrangements will require bilateral agreements with the States and Territories. Negotiations are now underway. 3

3.6 Many submissions were concerned that 'shared responsibility' might lead to unclear responsibilities. They particularly regretted the Commonwealth moving away from full responsibility for the National Highway System. The Australian Local Government Association feared that 'if the states and NT have to find extra funds to maintain national highways, this could lead to reduction of already low state expenditure on lower category roads and subsequent cost-shifting to local government.' The Transport Workers Union argued that 'the planning, construction and maintenance of the national Highway network clearly rests with the Federal Government and must remain so. ' 4

3.7 The Australian Road Forum thought 'the change in Commonwealth policy needs to be more fully explained within the context of a co-operative national effort . .. . '

Until this is in place, ARF believes it would be best not to make significant changes in the distribution of notional responsibility. 5

3.8 On the other hand, the Warren Centre suggested that responsibilities would be clearer if the Commonwealth was responsible for construction only, and the States were responsible for maintenance, since 'they are better able to fund this latter work through user-pays systems such as fares, vehicle charges and the like. '

6

3.9 Unions were concerned about the Commonwealth's intention, foreshadowed in the White Paper, to use bilateral agreements to insist that the National Code of Practice for the Construction Industry should apply to all projects which the Commonwealth funds significantly. 7 For example, the Construction Forestry Mining Energy Union argued that 'the Government is effectively saying that public contracts will only go to those States that are prepared to adopt the Government's political views on the matters contained within the Code ... '

That is not a proper basis for determining which States will obtain the benefit of essential transport infrastructure ... It is highly desirable that the

3 Mr M. Mrdak (Deputy Secretary, DOTARS), Committee Hansard 18 March 2005 , p.2

4 Submission 7, Australian Local Government Association, p.5 . Submission 18, Transport Workers Union, p.l. Similarly submission 16, Local Government Association of Queensland, p.2. Submission 23, Civil Contractors Federation, p.3. Mr M. Apps (Bus Industry Confederation), Committee Hansard 18 March 2005 , p.32.

5 Submission 15, Australian Road Forum, p.7.

6 Submission 9, The Warren Centre for Advanced Engineering, p.2.

7 AusLink White Paper, p.92-3 .

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AusLink bill should afford protection against the Government attaching its industrial relations "strings" to the funding ofprojects. 8

Comment

15

3.1 0 In considering arguments about shared responsibility and funding of construction versus maintenance, or funding of different classes of roads, two issues arise:

• What division of responsibilities is best in principle, whether administratively or politically (for example, to encourage cooperative project planning, or to reduce incentives to cost-shifting between governments)?

• How should the available funding be divided between the various needs?

3.11 In principle these are separate issues. Statements such as 'the Commonwealth should retain full responsibility for the National Highway, because the States will not be able to afford to contribute' tend to roll them into one.

3.12 The best division of responsibilities in principle should be considered without regard to who pays what at present. If the best division of responsibilities suggests that one level of government should contribute more and another less than they do now, other areas of expenditure or untied grants to states or local government can and should be adjusted to compensate.

3.13 For example, if States are to contribute to maintaining what was formerly the Commonwealth-maintained National Highway System the Commonwealth, to maintain its proportion of the total road funding effort, will have to either spend more in other areas, or increase untied grants. The untied grants would presumably flow

through to State-funded maintenance of the highway, assuming that the present maintenance was needed and there was the political commitment to continue this.

3.14 The Committee accepts the Government's arguments for shared responsibility at paragraph 3.3. The Committee notes the Government's assurance that AusLink, while it introduces shared responsibility for the National Network, does significantly increase total Commonwealth transport infrastructure spending.

9

3.15 Much will depend on all governments approaching bilateral agreements in a constructive and cooperative way. The principle of sharing the total available budget among the various needs efficiently, without being driven by which government happens to have nominal responsibility for which item and how big its taxing and spending capacity is, will obviously require more effort on research and planning, so that we know what the most efficient pattern of spending on the various needs will be.

8 Submission 19, CFMEU, p.8. Similarly submission 18, Transport Workers Union, p.5. Submission 21, Rail Tram and Bus Union, p.l.

9 DOTARS, answers to questions, 6 May 2005, p.3 .

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3.16 The Commonwealth's AusLink proposals for the first five years are on the table. The Committee hopes that this will allow the development of the first bilateral agreements to focus on a suitable template of general conditions without the distraction of competition among the States in relation to their shares of the total funding.

3.17 Concerns about cost-shifting also arise between State and local government. It is a large part of the controversy over proposals to close some smaller grain branch lines in New South Wales where it appears that road transport would be cheaper than maintaining the railway. IO Many local communities, apart from their concerns about the safety implications of more trucks on local roads, fear that a rail maintenance saving to the State will become a road maintenance cost to local councils, without adequate compensation.

3.18 In this case the same principles should apply. Which option is most economical for the community as a whole (after including full life-cycle costs and externalities such as road accident costs) should be assessed objectively without regard to who pays what. If that suggests that there should be a new division of responsibilities (for example, local councils spend more on road maintenance), the money needed to carry out the responsibility will have to follow. This would have to include arrangements to guarantee that the funding stream will be secure into the future.

Arguments about the total level of funding

3.19 Since the 1970s investment in infrastructure has fallen from about 7% to about 3.6% of Gross Domestic Product. I I It is widely argued that it needs to increase. Arguments about road and rail funding are part of that broader argument.

3.20 The Australian Automobile Association quoted surveys showing that most people would like to see more infrastructure spending in preference to a government surplus. I2 The Transport Workers Union advocated 'innovative mechanisms' for addressing the infrastructure backlog, including 'engaging the private sector on projects that could potentially provide a return to shareholders. ,IJ The Civil Contractors Federation argued that government should not be afraid to borrow to fund infrastructure:

10 A 2004 report recommended five NSW grain lines for upgrading, three as 'unlikely to justify upgrading,', and seven for further assessment. Grain Infrastructure Advisory Committee, Report on Rail/Road Options for Grain Logistics, 2004, p.31-32.

II Submission 4, Railway Technical Society of Australia, p.1 .

12 Submission 13, Australian Automobile Association, p.2.

13 Submission 18, Transport Workers Union, p.3.

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Public debt in Australia is low by OECD standards and accordingly there is scope to use borrowings, not for fmancing recurrent expenditure, but to finance long-term infrastructure assets. 14

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3.21 These arguments extend easily to arguments for increased spending on roads and railways. Engineers Australia's Australian Infrastructure Report Card in 2001 gave national roads a grade of C and railways a grade of D minus. The Australian Automobile Association argued that new AusLink funding is not as great as it seems, and there is a backlog of economically viable road projects of $4.4 billion in New

South Wales, $3.8 billion in Victoria, and $2.2 billion in Western Australia. Similarly, the Civil Contractors Federation claimed that ' against the overall need it is only a beginning and spread over five years the "new money" component is relatively minor.' 15

3.22 The Australian Rail Track Corporation in 2001 estimated a cost of about $3 billion to bring the interstate rail network up to the Australian Transport Council's targets for speed, axle load and train length. The Australian Council for Infrastructure Development in 2004 estimated an investment backlog of $1 0 billion in roads and $8 billion in railways. 16

3.23 AusLink aims to encourage private sector investment in transport infrastructure. The White Paper argues that experience has shown that private tollroads can be efficiently run and release government funding for other worthwhile public infrastructure. It suggests that there are opportunities for capturing increases in

land value caused by transport improvements. 17

3.24 The Australasian Railway Association (ARA) noted that there is strong support for further private investment in rail infrastructure. However the ARA was concerned that the AusLink framework ' does not easily allow for blended private public investment':

14 Submission 23, Civil Contractors Federation, p.2.

15 Submission 13, Australian Automobile Association, p.3 -5. Submission 23 , Civil Contractors Federation, p.3. Submission 28, Engineers Australia, p. l. For the Government's answers to the AAA' s argument that new funding is not as great as the Government claims, see DOTARS, answers to questious, 6 May 2005, p.3.

16 Australian Rail Track Corporation, Interstate Rail Network Audit- summary rep ort, 2001, p.4. Australian Council for Infrastructure Development, Modelling th e Economic Effects of Overcoming UnderiTTVestment in Australian Infrastructure, 2004, p.14ff. Mr C. Althaus (Australian Trucking Association), Committee Hansard 18 March 2005, p.15-16. ACID's rail figure exceeds the ARTC audit rail figure mainly because it includes a Melbourne-Brisbane inland route ($1.8 billion), Sydney urban projects ($2 .5 billion) and various projects not on the

interstate routes which were the subject of the ARTC audit.

17 AusLink White Paper, p.26.

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It also has no apparent capacity for public investment in privately owned infrastructure where there is a public benefit. 18

3 .25 The ARA also noted that because below rail and above rail investments need to be well co-ordinated for maximum benefits, train operators need to have track investment plans that are long term, transparent and have clear timeframes: 'Uncertainty in investment in track increases the risk for above rail investments.' Others also stressed the need for long term certainty about funding. 19

3.26 The Australian Logistics Council stressed that 'it will be important to ensure that infrastructure is not addressed in isolation ... '

Logistics is a system and investment in infrastructure must be matched by attention to reform and streamlining of regulations and by the development of people with the skills to operate the system. These three areas, infrastructure, people and regulation, must all be considered within the AusLink framework.20

Comment

3.27 The Committee agrees with the need to upgrade Australia's infrastructure investment. However spending on things like roads and railways must compete for public funding with 'other important areas of government responsibility such as defence, education and health care. Deciding the right balance of expenditure between these widely different goods is essentially a political, not economic matter, because of the difficulty of comparing their very different, and often non-quantifiable, costs and benefits. However orderly the cost-benefit study of a new highway deviation is, whether it should take priority over a new operating theatre comes down more to community values than economic analysis.

3.28 Similarly within the transport sector: showing that a road or rail project is beneficial considered in isolation is only the first step in showing what priority it ought to have for funding. The task of government is to set priorities within limited budgets. The Committee supports corridor strategies as a way of doing that in an economically sound way.

3.29 While the Committee agrees with submissions that there is nothing wrong with public borrowing to fund infrastructure, this needs to be done with discipline to ensure that the benefits which flow from the investment will be at least enough to pay the interest. Direct private investment should also be encouraged, but that will tend to be limited to situations (such as rail freight and urban tollways) where it is practical to

18 Submission 22, Australasian Railway Association, p.2.

19 Submission 22, Australasian Railway Association, p.2. Submission 5, Manto Shire Council, p.5. Submission 15, Australian Road Forum, p.4. Submission 25, Western Australian Government, p.5.

20 Submission 26, Australian Logistics Council, p.l .

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recover costs through direct user charges. Where benefits are widely spread among the community at large or it is not practical to recover costs commercially, it is necessary to make the investment publicly and pay for it either through general taxes or through government levied charges on user groups, if they can be identified fairly.

3.30 An arbitrary preference for private investment over public borrowing is not advisable, since it may bias investment in favour of the types of projects which most lend themselves to private funding, when other projects that require public funding might be just as beneficial.

Giving adequate priority to maintenance

3.31 It is natural that if the total capital stock increases at a linear rate, the cost of maintaining what exists already, relative to the cost of increasing it further, will increase. As well, it is argued that many roads and bridges built in the 1950s, 60s snd 70s are coming to the end of their lives, and 'the chickens are all roosting at once'.21 In recent years there have been suspicions that some privatised rail track owners have been economising costs unsustainably by deferring maintenance. In large part the present debate over the future of grain branch railways, especially in New South Wales, is caused by inadequate maintenance in the past. 22 Maintenance deferred too

long can increase the eventual expense of restoration disproportionately.

3.32 Submitters were particularly concerned about the maintenance backlog on the existing network, especially on local roads. 23 For example, Engineers Australia was concerned that AusLink might be too focussed on new projects:

Existing infrastructure is, in some cases, in a disturbing state, especially rail and local roads. The emphasis of AusLink is on the development of new projects. However, existing investment in infrastructure, and overall system performance, needs to be safeguarded as well. We believe it essential that the national infrastructure programming methodology adopt a whole of life analysis approach when prioritising investment in the expanded National Land Transport Network.

24

3.33 The Australian Automobile Association (AAA) quoted estimates by the Bureau of Transport and Regional Economics (BTRE) that the maintenance needs of the National Highway would be $360 million a year by 2014-15. On this basis the AAA thought that planned AusLink maintenance funding is insufficient:

21 Submission 15, Australian Road Forum, p.7.

22 Submission 21 , Rail Tram and Bus Union, describes problems of the Eyre Peninsula system. There are similar problems in Victoria and Western Australia: Dr P. Laird (Railway Technical Society of Australia), Committee Hansard 18 March 2005, p.36.

23 For example, submission 15, Australian Road Forum, p.4. Submission 23, Civil Contractors Federation, p.2.

24 Submission 28, Engineers Australia, p.l .

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Increased funding needs to be allocated to maintenance ... the government needs to identifY and report on the asset value of the National Network so that the appropriate level of maintenance spending can be identified and account for depreciation of the asset. 25

3.34 The Western Australian Government was concerned that the

Commonwealth's proposed maintenance funding formula might favour the more populous states.26 The ACT Government noted that maintenance funds are not indexed whilst performance outcomes sought are constant: 'This will potentially see costs and risks shifted to States and Territories in the longer term. ' 27

3.35 Monto Shire Council stressed the need to plan capital expenditure and future maintenance together in order to optimise the present value of the investment. 28 This is relevant, for example, in the debate over the future of grain branch railways which are in poor condition because of deferred maintenance. The high cost of restoring them may tempt governments to turn to road transport; but the ongoing road maintenance costs must also be considered.

Comment

3.36 Tne Committee agrees with the importance of prioritising maintenance needs appropriately. The proportion of the budget that should go to maintenance as opposed to new projects needs to be assessed in an economically sound way. It is perhaps tempting to put more of the money into new projects because they are more visible. Conscientious governments should try to resist the temptation to overfund new projects and underfund maintenance because of that. Inadequate maintenance prejudices the whole network.

3.37 As to the proposed 'Commonwealth responsibility' for maintenance, the comments at paragraph 3.10ffapply. The fact that there are urgent maintenance needs does not necessarily mean that it should be the Commonwealth's responsibility to meet them. It does mean that the division of funds between governments should match the division of responsibilities so that where the responsibility lies, the spending capacity is found, subject to the constraints of the total budget.

3.38 The Committee notes that under AusLink the Commonwealth is committing $300 million per year to road maintenance in the five years to 2008-09, compared with $289 million per year on average in the five years to 2003-04. 29

25 Submission 13, Australian Automobile Association, p.5.

26 Submission 25, Western Australian Government, p.26.

27 Submission 27 , ACT Government, p.2.

28 Submission 5, Monto Shire Council, p.3.

29 DOTARS, answers to questions 6 May 2005, p.4.

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Need for clear principles for prioritising projects

3.39 The White Paper promises a new approach to prioritising projects in a transparent, orderly way through corridor strategies and the National Land Transport Plan. However in the bill the Minister's discretion to approve and fund projects is extremely wide. The sections that could be regarded as guiding the Minister's discretion are brief, rudimentary and expressed at a high level of generality.30 The intention is obviously that more detailed guidelines will be developed at the administrative level.

3.40 According to the White Paper corridor strategies will allow managing the total transport needs of a corridor by the most efficient means available, rather than a modally based approach'. 31 DOT ARS advised:

The development of corridor strategies will be supported by a range of rigorous studies to determine needs, deficiencies and future investment priorities. For each corridor, the following assessments will be made:

• how the corridor needs to perform to meet future demands safely and effectively;

• relative benefits of, and synergies between, transport modes;

• consistency with, and contribution to, national priorities; and

• how to maximise private sector involvement and potential for public private partnerships.

3.41 DOT ARS advised that all jurisdictions have agreed to adopt a standard methodology for project assessment, and pilot strategies are now under way for the Sydney-Melbourne, Adelaide urban, Brisbane-Cairns and Adelaide-Perth corridors. DOT ARS promised that 'the input and views of non-government stakeholders will be

sought during the development of the corridor strategies ... ' 32

3.42 Submissions generally welcomed the promise of more holistic corridor planning. For example, the Australian Trucking Association said:

The development of agreed investment appraisal guidelines, which include the need to assess both public and private investment opportunities, should provide a rational basis for government investment, whether from recurrent expenditure or debt funding, or in partnership with private investment.

33

3.43 However some submitters were concerned that the bill leaves too much discretion to the Minister in approving projects. Others were concerned that the first

30 These are the sections of the bill headed 'Is it appropriate to approve a project?'

31 AusLink White Paper, p.22

32 Submission 6, Dept of Transport & Regional Services, p.2,4.

33 Submission 8, Australian Trucking Association, p.2. Similarly submission 13, Australian Automobile Association, p.7.

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five year plan has been settled in the absence of corridor strategies, and without any clear statements of reasons about the chosen priorities. For example, the Civil Contractors Federation was concerned that:

The identification and prioritisation of projects lacks transparency or a clear methodology (although the development of a cost-benefit based approach is promised). Such a methodology needs to be completed quickly. Also, the degree to which decisions are discretionary in the hands of a Minister is not preferred. 4

3.44 The Australian Automobile Association (AAA) 'would have liked to have seen the increased transparency and the application of benefit cost analysis which was promoted in the White Parser to have been applied to the project selection prior to the commitment of funding.' 5 The AAA 'looks forward to seeing the benefit-cost ratios of all AusLink projects made available in the near future. ' 36

3.45 The Sustainable Transport Coalition WA urged the need for triple bottom line assessment including environmental, social and economic costs and benefits. It argued that this should include giving due attention to future oil vulnerability:

The economic and social consequences of oil supply shocks and escalating fuel prices .. . must make this a key factor in planning and funding land transport infrastructure. 37

3.46 Concerns about the need for clear transparent project selection criteria arise particularly in relation to Strategic Regional Projects. For example, the Australian Local Government Association said:

ALGA is concerned that many of the guidelines and processes for the operation of the SRC are yet to be released. It is important that that the SRC administrative arrangements are simple, efficient and transparent and should clearly specify how SRC projects are selected in terms of criteria, priority and timing.38

Comment

3.47 The Committee affirms the need for disciplined, transparent, publicly available project assessment guidelines. The Committee looks forward to seeing the National Land Transport Plan and the corridor strategies which will guide this.

34 Submission 23 , Civil Contractors Federation, p.3.

35 Submission 13, Australian Automobile Association, p.7. Similarly submission 16, Local Government Association of Queensland, p.6. Submission 18, Transport Workers Union, p.2.

36 Submission 13, Australian Automobile Association, p.2.

37 Submission 29, Sustainable Transport Coalition WA, p.l.

38 Submission 7, Australian Local Government Association, p.4.

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3.48 The Committee is sympathetic to concerns about the commitment of such large amounts of money in advance of the project assessment methodology that AusLink promises. However, the Committee notes DOTARS's assurances that the White Paper projects were the outcome of exhaustive consultation, both with the states and through submissions to the AusLink Green Paper:

The department received some 550 submissions in a very open process of discussion with a whole range of parties.... The states put forward to us what their priority projects would be on the network in the lead-up to the preparation of the white paper. . . I think it is fair to say that from our dealings with the states on the whole we have picked up the bulk of their priority projects, if not all of their projects, in this five years .... The timing

of our payments to some of those projects may differ to what they would have hoped, but on the whole my experience has been that all the states have seen this as according with their own priority needs.39

3.49 The Committee suspects that submitters would not suggest that the AusLink funding boost should be postponed for two or three years to allow corridor strategies to be completed. The Government's approach is a necessary compromise between the urgent need for a boost to transport infrastructure funding, and the fact that setting in place new planning systems will inevitably take time.

3.50 The Committee stresses that in the longer term it is the unified project assessment methodology that is most important element of AusLink. The success of AusLink will depend on continued effort, and the Committee urges the governments to make this a priority.

3.51 The Committee is pleased to nqte that the Commonwealth and State/Territory transport ministers in November 2004 agreed to a set of national guidelines on how projects will be planned, brought forward, and assessed on a common basis across the country.40 The Committee will take an ongoing interest in reviewing progress on the national plan and corridor strategies.

3.52 Clear project assessment criteria are particularly necessary for the Strategic Regional projects, to avoid accusations that the road funding decisions are influenced by political considerations.

Non-economic considerations

3.53 The Commonwealth funds rural local roads which would probably score poorly in a formal cost-benefit analysis in comparison with urban arterial roads. This funding appears to be for social policy reasons to do with supporting rural communities. Some submissions were concerned that too 'economic' an approach to project appraisal will militate against these:

39 Mr M. Mrdak (Deputy Secretary, DOT ARS), Committee Hansard 12 April 2005, p.28 .

40 Mr M. Mrdak (Deputy Secretary, DOTARS), Committee Hansard 18 March 2005, p.2.

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Prevailing practices in government transport agencies suggest that such assessments will be biased to proposed road projects where high traffic volumes or significant delays dominate all other considerations. As such, it is unlikely a strategic project in a rural area will out-rank a project in an outer urban area or in a major regional centre.41

3.54 As well, it must be said that prioritising projects on economic criteria may cut across concepts of giving each State, region or council its 'fair share' of funding according to some formula. It may happen that the economic analysis suggests that funding should go with priority to a particular area, simply because that area has been most under-funded in the past in relation to need. For example, arguably this applies to upgrading the Melbourne-Sydney-Brisbane railway.

3.55 The Western Australian Government was concerned that 'such an approach will not adequately take into consideration social and equity objectives, benefit the more populous States, and penalise those States that have historically been a good custodian of their transport infrastructure. ' 42 The Local Government Association of Queensland thought that 'funding must be allocated equitably across states and regions ...

. . . there should be no nationally competitive process - The total strategic funding pool should initially be divided on the same individual council allocation as the core component to determine a state and then regional shares .. .'43

Comment

3.56 In the Committee's view there is a need for social policy considerations to be factored into funding decisions. For example, it is essential to keep up the effort in maintaining rural local roads for the sake of the overall prosperity and social cohesion of Australia's regions. However the goals must be clear, the criteria transparent, and projects must be prioritised in a disciplined way with reference to their social purposes just as they should be with reference to their economic purposes.

3.57 On the matter of a cost-benefit approach to distributing money versus 'fair shares', the Committee comments: there may well be a tension between these motives. A strict 'fair shares' approach militates against 'nation building' projects, since they inevitably involve one particular area getting more than its 'fair share' this time round. This would be undesirable. For example, upgrading the Melbourne-Sydney-Brisbane railway should not be put off simply because it does not benefit Western Australia.

3.58 On the other hand, a competitive application system, taken down too far towards the local level, becomes administratively cumbersome. Formulas for

41 For example, submission 5, Monto Shire Council, p.2 .

42 Submission 25, Western Australian Government, p.5.

43 Submission 16, Local Government Association of Queensland, p.4.

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distributing funding to states or regions rely on the assumption that on average their needs are similar, and the money will be as well spent in one region as another. In the case of local road grants this is probably a reasonable assumption.

3.59 Strategic Regional Projects stand somewhere in the middle. The White Paper proposed that they would be funded by competitive applications, but including some concept of 'fair shares' among States. The Committee notes that as an election commitment the Government decided to allocate the strategic regional allocation promised in the White Paper ($400 million over four years) to councils by a formula

similar to the Roads to Recovery formula. The Government also committed an extra $150 million for strategic regional projects. DOT ARS advised that the Government has not decided how to allocate the part of this which has not already been committed. 44

3.60 The Committee notes also the argument of Monto Shire Council that ' continuity of funding to local governments is essential in ensuring sound asset management practices'.45 At the local level formula based shares are more likely to ensure this.

Need for efficient charges for use of infrastructure

3.6 1 Efficient charges for the use of transport infrastructure are an essential prerequisite to economically sound decision-making about priorities for infrastructure investment. If use is underpriced, for example, use will · be greater than is economically optimal. An investment which reduces costs per user will then seem to be more beneficial because there are more users; but it may simply be causing the

growth of sub-optimal economic behaviour.

3.62 Heavy vehicles pay to use public roads through registration fees and fuel excise. Rail train operators pay access charges to track owners.

3.63 Heavy vehicle road use charges are based on a formula for distributing road costs among the various road users devised by the National Transport Commission (NTC - formerly National Road Transport Commission). Whether the charges adequately cover costs which should be attributed to heavy vehicles (such as road wear) is disputed.

3.64 The Australian Trucking Association argued that heavy vehicles pay II 0% of the costs allocated to them. The Rail Tram and Bus Union claimed that heavy vehicles underpay. The Railway Technical Society of Australia noted that 'there is a strong

44 AusLink White Paper, p.83. Mr M. Mrdak (Deputy Secretary, DOT ARS), Committee Hansard 18 March 2005, p.3-4,13 .

45 Submission 5, Monto Shire Council, p.5 .

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debate about the adequacy of the level of road pricing for heavy trucks and the structure of the present charges. ' 46

3.65 The Bureau of Transport and Regional Economics (BTRE) in 2003 said that 'current heavy vehicle infrastructure pricing arrangements achieve the objective of recovery of aggregate distributed costs, including capital costs (108 per cent)' .47 This refers to heavy vehicles as a whole - an important qualification in respect of the heaviest vehicles is mentioned at paragraph 3.69 below.

3.66 Arguments that heavy vehicles do not pay their way have two strands. Firstly, critics point out that the cost elements which are the basis of the NTC charges exclude some costs, such as heavy vehicle registration and enforcement costs, and external costs such as congestion, pollution and crash costs (excluding externalities favours road over rail because external costs are higher for road than for rail). 48

3.67 Secondly, critics argue that the NTC's detailed methodology for distributing costs among road users is inappropriate in some ways. 49 For example, 'non-separable' costs, which are regarded as including the cost of building a minimum possible standard of road, are allocated across vehicle classes according to total vehicle kilometres travelled. Some argue that these costs should be allocated according to Passenger Car Units (a measure of the road space a vehicle takes up). This would increase the proportion of the cost borne by heavy vehicles.

3.68 In relation to this the BTRE notes that 'the appropriate choice of road use parameter, and consequently the share of road expenditure attributable to heavy vehicles, is not certain ... '

For example, in the first determination road maintenance expenditure was attributed according to ESA [equivalent standard axles ]-kms whereas in the second determination road maintenance expenditure was allocated by AGM [average gross mass]-km. The effect of this change was that larger heavy vehicles paid a smaller share of road maintenance costs under the second determination than previously. 5°

3.69 Regardless of these arguments, it seems to be agreed that the heaviest vehicles and the most fully loaded vehicles do not pay their way, but are subsidised by lighter

46 Submission 8, Australian Trucking Association, p.3. Submission 21, Rail Tram and Bus Union, p.l. submission 4, Railway Technical Society of Australia, p.3.

47 Bureau of Transport and Regional Economics, Land Transport Infrastructure Pricing: an Introduction, working paper 57, 2003, p.vi.

48 The NTC is to consider external costs as part of the third heavy vehicles charges determination due to be implemented in 2005.

49 For example, see submissions of Pacific National Pty Ltd to Productivity Commission review of National Competition Policy reforms, 2004.

50 Bureau of Transport and Regional Economics, Land Transport Infrastructure Pricing: an Introduction, working paper 57, 2003, p.5

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heavy vehicles (if one argues that heavy vehicles as a whole do pay their way) or blt other road users (if one argues that heavy vehicles as a whole do not pay their way). 1 The BTRE, which as noted says that heavy vehicles as a whole do pay their way (given the methodology for distributing costs), qualified this by saying:

The arrangements achieve only 90 per cent recovery for the heaviest vehicles. 52

3.70 The AusLink Green Paper noted that averaging provtswns in the NTC methodology mean that 'those trucks that carry greater than average loads and travel greater than average distances bear less than the costs attributed to them by the NRTC' .53

3. 71 Another difficulty in setting charges is that using fuel excise as a charge for marginal road wear costs is not ideal, because as vehicle load increases fuel use increases at a declining rate, but road wear increases at an increasing rate. 54 This favours the heaviest vehicles. Mass-distance charges have been suggested as an alternative. 55

3.72 These points are significant for competitive neutrality because it is the heaviest vehicles that compete most directly with rail.

3.73 Rail access charges usually comprise a 'flagfall' charge- per train plus a charge per tonne-kilometre. According to the BTRE track owners report positive returns on assets, however it is likely that the returns, while they may cover track maintenance, may not be enough to cover track renewal and investment needed in the long term: 'It

follows that current charges mal not reflect the economic cost of providing rail freight infrastructure in the long run. ' 5

3.74 In the case of some lightly built and poorly maintained New South Wales grain lines, it appears that access charges cover only a very small proportion of the cost of maintaining the asset. 57 On the other hand, the NSW Farmers Federation argued that 'current road freight rates offered by some companies to attract grain into

super sites do not reflect the actual cost of moving grain and are not sustainable over

51 'Heavy vehicles' are those with a gross vehicle mass of 4.5 tonnes or more.

52 Bureau of Transport and Regional Economics, Land Transport Infrastructure Pricing: an Introduction, working paper 57, 2003, p.vi.

53 AusLink Green Paper, 2002, p.36.

54 Road wear increases greatly with increasing axle load.

55 Bureau of Transport and Regional Economics, Land Transport Infrastructure Pricing: an Introduction, working paper 57, 2003, p.9-10.

56 Bureau of Transport and Regional Economics, Land Transport Infrastructure Pricing: an Introduction, working paper 57, 2003, p.vi. AusLink Green Paper, p.36.

57 Grain Infrastructure Advisory Committee, Report on Road/Rail Options for Grain Logistics,

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the longer term. ' 58 This complicates the issue of deciding whether it is more economic to upgrade or close smaller lines.

3. 7 5 The discussion above refers mostly to long distance freight transport. Efficient pricing is also needed in urban areas. The Australian Automobile Association stressed the need to 'address the issue of transport pricing sooner rather than later, and how it might helpfully address the congestion problems in our major capital cities. ' 59 This refers to proposals for 'congestion pricing', so that vehicles which drive in the most congested areas, or at the most congested times, pay more to reflect the costs they impose on others. 60

Comment

3.76 The Committee affirms the need to continue working towards efficient pricing of access to infrastructure as a prerequisite to sound corridor strategies and related matters such as deciding the future of grain railways. The Committee acknowledges the work of the National Transport Commission in this regard and notes that the Commission is now working towards its third heavy vehicles road pricing determination with a view to bringing proposals to the governments in 2006.

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Improving urban transport infrastructure

3.77 Some submitters argued that the Commonwealth should be more involved in improving urban transport infrastructure, since its quality intimately affects the efficiency of the long distance freight movements which are AusLink's focus. The Civil Contractors Federation said:

The inherent competitive advantage of road transport, at least, is the capacity to move passengers and freight from a multiplicity of origins to destinations with great flexibility. The proposed legislation does little to address new road funding, maintenance and remediation in the urban and regional catchment areas at either end of the national corridors. 62

3.78 Some extended this idea to argue that it should include improving urban public transport infrastructure as a way of moderating road congestion. The Western Australian Government argued that 'AusLink, in its present form, can only be considered a freight policy and not a comprehensive transport policy while it is not

58 Submission 20, NSW Farmers Association, p.l .

59 Submission 13, Australian Automobile Association, p.2. Mr J. Metcalfe (Australian Automobile Association, Committee Hansard 12 April2005, p.ll.

60 A motorist entering a congested road is delayed by others but also causes delay to others. This delay increases greatly as the level of congestion increases. If motorists are not required to pay for the costs they impose on others, economically inefficient overuse of the road will result.

61 Mr M. Mrdak (Deputy Secretary, DOTARS), Committee Hansard 12 April2005, p.31.

62 Submission 23, Civil Contractors Federation, p.3.

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more inclusive of all modes of transport such as public transport and cycling infrastructure ... '

In reality, lack of alternatives in passenger transport is of profound importance to freight as the two tasks compete for space on the same network. 63

3.79 The Rail Tram and Bus Union argued that 'urban public transport infrastructure requires urgent federal support, as it receives in all other federal OECD countries'. The Chartered Institute of Logistics and Transport in Australia suggested that Roads to Recovery should include public transport. 64 The Sustainable Transport Coalition W A said:

If the aim is to enhance transport efficiency for national benefit. .. then other measures should be eligible for funding. For example, improvements to urban public transport services or a behavioural travel demand management program could reduce commuter traffic to the benefit of freight transport efficiency ... 65

3.80 The AusLink White Paper considered and rejected such arguments, saying: 'the Australian Government's position on public transport is clear: it is primarily a State and Territory Government responsibility ... '

The Australian Government considers that State and Territory governments are best placed to deal with the metropolitan and local complexities of public transport. The Australian Government's role has focused, and will continue to focus , on interstate connectivity and trade and commerce

between the States and with other nations. 66

3.81 The White Paper argued that 'even if service improvements on public transport could be achieved, it would still not be enough to significantly affect growing road congestion. ' 67

3.82 However it appears that these issues are still on the table. DOT ARS reported that in November 2004 the Australian Transport Council decided to commission work 'on the key issue of urban congestion.' As well, corridor strategies ' will examine issues impacting on the efficiency of the urban links on the National Land Transport

Network, including the role of public transport. ' 68

63 Submission 25, Government of Western Australia, p. l. Similarly submission 4, Railway Technical Society of Australia, p.5.

64 Submission 21 , RTBU, p.5. Submission 24, CILTA, p.l.

65 Submission 29, Sustainable Transport Coalition WA, p.2.

66 AusLink White Paper, p.9.

67 AusLink White Paper, p.9.

68 Submission 6, DOTARS , p.5-6.

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Comment

3.83 The efficiency of urban passenger transport, and the efficiency of the freight transport which is the focus of AusLink, are intimately connected, since trucks and cars use the same roads, and freight and passenger trains share the same tracks.69

3.84 The Committee notes that Strategic Regional Projects under the AusLink bill can include any road or rail projects which are not on the National Land Transport Network (clause 54). Although the criteria at section 55 seem to assume that they will be rural and regional, the Minister is not limited by these criteria. They could include urban projects. The Committee suggests that any move in this direction should relate to projects that support the goals of AusLink.

3.85 As for the arguments about urban public transport: to say that improving public transport will not significantly affect road congestion may be true overall, but it does not prove that improving public transport is unimportant. In favourable corridors, in conjunction with congestion pricing of road use, it may help. In the long term, by increasing the public transport mode share, it may hope to at least moderate the growth of traffic and therefore reduce or postpone the pressure for new roadworks.

This also depends greatly on having urban planning policies which shape city growth in ways that allow public transport to work efficiently. Urban planning issues are a State responsibility.

3.86 Efficient transport investment requires better road pricing. This will probably mean significant new charges for using urban roads at the most congested times and places. This is unlikely to be politically acceptable without serious improvement to public transport networks, so that more motorists have other choices.

3.87 Serious improvements to public transport infrastructure - particularly rail extensions - are costly, tend to come in large, indivisible packages, and have very long payback periods. They are hard to program within State-sized budgets, and easy to shelve in favour of more incremental roadworks. However this outcome is not necessarily optimal in the long term.

3.88 The Committee does not suggest that the Commonwealth should take over the States' basic responsibility for urban public transport. However there may be a case for Commonwealth assistance to major projects such as rail extensions which are unlikely to happen, or unlikely to happen soon enough, without the involvement of the bigger budget which the Commonwealth commands.

69 The second point is most significant in Sydney, where freight trains are curfewed for long hours during peak periods so as not to risk holding up commuter trains.

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Extending Roads to Recovery to public transport, rural airports runways etc.

3.89 Submissions were divided on whether Roads to Recovery money should be used for things like cycleways, pedestrian facilities, public transport or rural airport runways. Some were concerned that this would reduce funds available for roads. For example, the National Farmers Federation said:

Despite the Roads to Recovery program, there remains inadequate funds available for the maintenance and upgrade of rural roads. As a result, any change to the program which would dilute the resources available for road upgrades should be strongly opposed.70

3.90 Some accepted the value of these other things, but did not think they should be mixed with Roads to Recovery. The Australian Local Government Association said:

ALGA considers the prime purpose of R2R is to reduce the local roads maintenance backlog and thus suggests that any such wider funding should essentially be limited to the current provisions for cycling and walking facilities, where these are proposed by a council. However, with the

increasing pressures on public transport, there is growing justification for federal involvement in a new dedicated public transport program.71

3.91 Others supported greater flexibility, mostly on the grounds that local communities should be able to make their own choices. For example, the Municipal Association of Victoria 'would support the broadening of the scope of R2R criteria to enable local councils to have a degree of choice in relation to their transport-related priorities.' 72

3.92 The Warren Centre pointed out that limiting eligible cycleways to those 'associated with a road' (as at present) favours on-road cycleways which must have road thickness pavements, whereas it might be possible to build an off-road cycleway with a thinner pavement much more cheaply.73

3.93 The Australian Airports Association argued strongly that Roads to Recovery money should be available for rural airport runways and ancillary aeronautical equipment. The AAA argued this on the grounds that:

70 Submission 3, National Fanners Federation, p.2.

71 Submission 7, Australian Local Gove=ent Association, p.4.

72 Submission 10, Municipal Association of Victoria, p .2. Similarly submission 18, Transport Workers Union, p.5

73 Mr K. Dobinson (The Warren Centre for Advanced Engineering), Committee Hansard 12 April 2005, p.5. The limitation 'associated with a road' arises from the definition of 'road', which limits eligible projects: Roads to Recovery Act 2000, section 3. AusLink (National Land Transport) Bill, section 4.

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• since the Commonwealth handed responsibility for these airports to local government in the 1990s, local councils have not been able to afford to maintain them adequately;

• in remote areas upgrading airports may be less costly than upgrading roads;

• communities should be able to choose their priorities. 74

3.94 Others argued against extending Roads to Recovery to airports, again because it could reduce money for roads. The National Farmers Federation thought that any initiative to upgrade airports should be considered separately. 75

3.95 DOTARS noted that Roads to Recovery money can already be used for pedestrian and cycling facilities associated with a road. It advised that government policy is that 'public transport is the responsibility of the states'. It noted that local councils may use their untied grants to meet other needs such as the needs of rural airports. 76

Comment

3.96 The Committee notes that pedestrian and cycling facilities associated with a road can already be funded under Roads to Recovery. The AusLink bill does not change this, as the definition of 'road', which includes these things, is unchanged. 77

3.97 The Committee accepts the Government's argument that councils may use their untied grants for purposes such as maintaining rural airports. However the Committee is concerned by the evidence that in practice many councils find it difficult to afford this. The Committee suggest the Government should keep this issue under review. There may be a case for compensation where one council is responsible for maintaining an airport which is used by others in the areas.

3.98 Public transport infrastructure (as opposed to operations) controlled by local councils would probably be limited to bus-related roadworks and bus shelters and interchanges. Bus-related roadworks could be funded as roads. In relation to other facilities, the argument that local councils may use their untied grants would also apply.

74 Submission 14, Australian Airports Association. Similarly, submission 12, Outback Areas Community Development Trust. Submission 25, Western Australian Government, p.7.

75 Submission 3, National Farmers Federation, p.2.

76 Submission 6, DOTARS, p.6.

77 Roads to Recovery Act 2000, section 3. AusLink (National Land Transport) Bill, section 4.

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Whether there should be a National Transport Advisory Council

3.99 The AusLink White Paper advised that the Australian Transport Council ' intends to establish a National Transport Advisory Council to provide strategic analysis and advice to ministers on the long-term development of the national transport system .. ..

The council will focus its analytical and advisory work on three important transport policy areas agreed by Ministers:

• developing advice on priorities for national infrastructure investment

• advice on reforms to support modal integration

• advice on strategies, policies and options for infrastructure pricing.

The structure and detailed operations of the Council have not yet been agreed by the Australian Transport Council. The Australian Government will discuss with the States and Territories the extent to which a National Transport Advisory Council might be appropriate for progressing some of the strategic planning issues associated with AusLink and the development of future versions of the National Land Transport Plan. 78

3.100 Since then it appears that the ministers have had second thoughts. DOTARS advised that in November 2004 the Australian Transport Council 'took a decision that it was not the right time to establish such a council, that the issues did not warrant such .a council being effective at this point, that they would prefer to work through

existiDg Commonwealth and state mechanisms to do further work and that they would review that decision in about 12 months time.'79

3.101 Almost all submissions strongly supported establishing a National Transport Advisory Council including stakeholder representation. For example, Engineers Australia thought that relying on existing State/Federal working groups would lead to too 'narrowly focused' advice:

At present, the government's internal advice comes from bodies with a narrow division of responsibility (on the basis of transport modes), which leads to advice that is narrowly-focused. It is our view that a single body be given responsibility for providing advice on all transport modes, to provide greater integration.

Engineers Australia strongly believes that an independent advisory body is essential to the AusLink process. We believe that the advisory body needs to include representatives from the private sector, as well as Federal, State and local government representatives. 80

78 AusLink White Paper, p.95.

79 Mr M. Mrdak (Deputy Secretary, DOTARS), Committee Hansard 18 March 2005, p.14. Similarly 14 April, p.34.

80 Submission 28, Engineers Australia, p.2.

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3.102 The Australian Road Forum 'would also like to see more effective consultation between governments and industry stakeholders ... '

In part, that has not been possible simply because of the number of stakeholders that are on the job, if you like, and the fact that there is no effective means of ever bringing them together. 81

3.103 Only the Australian Logistics Council did not support creating a new body, but this was not because it thought the proposed activities are unnecessary, but because it thought the Australian Logistics Council could carry the role. 82

3.104 It appears that the proposed role of the advisory council would be more higher level stakeholder consultation and priority setting than detailed project analysis. It is unclear how much it would be involved at the middle level of working out corridor strategies under the National Land Transport Plan. Engineers Australia suggests that the role of the council would be to provide a national perspective on matters including:

strategic development, best practice and standards; cross-jurisdictional issues and impacts; relationships and interaction between different forms of infrastructure;

the application of the principles of ecologically sustainable development; and • overall balance of infrastructure provision. 83

3.105 Engineers Australia suggested a framework 'which combines a top-down approach which establishes the appropriate level of funding in relation to need and resources, at a strategic level, and conducts a bottom-up technical analysis of candidate projects - and then matches the two via a needs analysis and some form of optimisation process. ' 84

Comment

3 .I 06 In the Committee's view it is essential to · have a forum for co-ordinating policy on the three areas suggested in the White Paper as roles for the council's advice: investment priorities, modal integration, and infrastructure pricing. It is essential for it to include industry and other stakeholder representation.

3.107 The Committee has concerns about whether existing Commonwealth/State working groups can carry this role. The Committee notes the strong support for the proposed council among almost all the key interest groups who submitted to this inquiry. The Committee supports reconsidering this matter, as the transport ministers'

81 Mr I. Webb (Australian Road Forum), Committee Hansard 12 April2005, p.25 .

82 Submission 26, Australian Logistics Council, p.1.

83 Submission 28, Engineers Australia, p.2. 84 Submission 28, Engineers Australia, p.3.

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resolution implied. The Committee hopes and expects that 'review in 12 months' will involve a genuine review.

Research and information

3.108 The bill allows for funding 'transport development and innovation projects' (part 4) and 'land transport research entities' (part 5). The White Paper proposed that of the $8.6 billion five year Commonwealth commitment to the National Network, one per cent will be spent on research and technology:

The Australian Government will consider technology-based solutions as part of, or as alternatives to, the construction of new infrastructure or as increases to the physical capacity of existing infrastructure. Funding support for applied research and development will also be considered. 85

.... These funds could be used for: • the development of transport data sets • research and development • planning, investigations and feasibility studies • the development and trialling of new technologies and practices. Funds are earmarked to contribute to improved corridor planning, the development and trialling of innovative technological applications, and as Australian contributions to national research organisations. The Government will also contribute funding towards enhancing the

development and analysis of nationally important data on the National Network. 86 .

3.109 Submissions supported an improved research effort. The Australian Road Forum noted that road research today is 'at greatly reduced levels', and is 'generally reactive in nature', compared with what it was in the 1960s and 70s. It welcomed AusLink's commitment to research. 87

3.110 The Sustainable Transport Coalition W A argued that the defmition of 'research' in the bill appears more restrictive than the definition in the Australian Land Transport Development Act 1988, which the AusLink bill will replace. It thought that ' areas worthy of greater research attention include land use and

behavioural measures that could reduce urban car dependence, transport energy including vulnerability to peaking oil supply, and smarter freight logistics. ' 88

3.111 Submissions stressed the information needs to enable the best management of the national assets in roads and railways. The Australian Road Forum said that 'Australia lacks a transparent system of national road accounts which aggregates the

85 AusLink White Paper, p.30,67.

86 AusLink White Paper, p.94.

87 Submission 15, Australian Road Forum, p.9. Similarly submission 21 , Rail Tram and Bus Union, p.3. Submission 23, Civil Contractors Federation, p.4.

88 Submission 29, Sustainable Transport Coalition WA, p.2.

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road infrastructure expenditure of our various levels of government'. The Australian Automobile Association argued that 'the Government needs to identify and report on the asset value of the National Network so that the appropriate level of maintenance spending can be identified and account for depreciation of the asset. '89

3.112 The Committee notes that the Australian Transport Council in November 2004 endorsed a National Transport Data Framework. This 'adopts a high-level strategic planning focus with the aim of advancing a better approach to assembling data to meet long-term strategic planning of transport infrastructure .... ' It recommended an incremental approach to establishing the framework, and stressed the need for it to be owned by all jurisdictions. 90

3.113 The working group report on this noted that in general 'basic road infrastructure data is extensive and reasonably consistent, but the position with respect to road-usage data appears to be mixed. Comparable data on rail asset condition is not yet available ... Basic information on intermodal transport facilities is even less readily available. ' 91

3.114 The Committee supports work towards better data to inform planning transport infrastructure. In the case of rail, it will be important to have protocols to ensure that the move to corporatisation and privatisation in recent years does not fragment information-gathering of industry-wide importance.

Recommendation

3.115 The Committee recommends that the biD should be passed.

Senator the Hon. BiD Heffernan

Chair

89 Submission 15, Australian Road Forum, p.6. Submission 13, Australian Automobile Association, p.5.

90 Australian Transport Council, National Transport Data Framework, 2004, p.iii,2.

91 Australian Transport Council, National Transport Data Framework, 2004, p.iii,2.

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Additional comments by Labor Senators

Labor Senators recognise the need for and support policies which will provide an integrated national transport policy for Australia.

Whilst Labor Senators agree in the main with the Committee's report, including recommendations regarding the passage of the Bills, some issues require further clarification.

It is important that the funding appropriated to AusLink be used in a transparent manner to deliver integrated national transport infrastructure which will serve the national interest.

However, in the wake of the highly politicised and questionable use of Regional Partnerships funding in the lead up to the 2004 election, the lack of transparency surrounding the assessment of AusLink projects approved in the same period and evidence heard by this committee, Labor Senators remain concerned that AusLink funding has the potential to become another part of the National Party's electoral slush fund.

National Highway Funding

The creation of an integrated land transport network has the potential to improve strategic infrastructure planning.

In the view of Labor Senators however, the implementation of an integrated land transport network is threatened by the change to the funding mix by the Howard Government in the first five year AusLink plan.

By abandoning its full responsibility to fund the construction and maintenance of the former National Highway System and requiring matching funding from the States, the Howard Government's AusLink policy threatens to force State governments to divert funds away from other important State road and rail infrastructure.

The Howard Government's decision to cap road maintenance funding at $300 million per annum for five years coupled with a lack of ongoing commitment to maintenance foreshadows a significant threat to the condition of the former National Highway in future.

In the view of Labor Senators, the change to the funding mix must not foreshadow a future withdrawal or reduction of the Howard Government's responsibility to adequately fund both construction and maintenance of important national transport links, including all roads formerly fully funded by the Commonwealth.

Removing Politics from the Strategic Regional Projects Program

The Committee heard evidence that demonstrated the Howard Government had manipulated the Strategic Regional Projects program for political purposes during the 2004 election campaign.

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Originally the program was to make available $120 million, on a competitive basis to regional groupings, over five years.

However, prior to the development of guidelines and in many instances prior to receiving applications for funding, the Howard Government committed $93 million of the available $120 million in funding under this program in the lead up to the 2004 election.

It is now unclear whether a number of projects promised to date by the Howard government under this program will proceed given some funding commitments were made based on matching State/Territory Government funding without adequate consultation with or approval of funding by the relevant State or Territory Governments.

Recommendation

To avoid the perception or reality of the use of Strategic Regional Projects program funding for political purposes, the Howard Government must ensure all projects announced to date and all future projects are rigorously and transparently assessed, following the development of appropriate guidelines, and in consultation with all other funding contributors.

Such guidelines should be developed and publicly available no later than 1 July 2005.

National Transport or Infrastructure Advisory Council

In addition to the overwhelming views of stakeholders, the experience prior to the 2004 election of politically-driven decision-making in relation to Strategic Regional Projects illustrates the importance of independent industry, expert and consumer input into the development of strategic infrastructure priorities.

Recommendation

The Howard Government must provide national leadership and work with the members of the Transport Ministerial Council to design and establish an appropriate advisory council to provide input from independent industry, expert and consumer organisations into the development of strategic land transport, and where appropriate national infrastructure priorities.

Senator Geoff Buckland (Deputy Chair, Labor Senator for South Australia)

Senator Kerry O'Brien (Labor Senator for Tasmania)

Senator Ursula Stephens (Labor Senator for New South Wales)

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Additional Comments -Australian Democrats

Introduction

In principle, Australia's transport systems should be accessible, safe, integrated and efficient. They should contribute less to our greenhouse gas emissions, utilise less fossil fuels and generate significantly less air pollution now and in the future.

The impact of transport on our environment is substantial, accounting for 14% of national greenhouse gas emissions in 2001 - an increase of25% over 1990 and this figure continues to rise. The freight load is forecast to double by 2020.

Urban planning and transport funding has favoured road over rail and private cars over public transport, walking and cycling. Australia has one of the lowest rates of utilisation of public transport in the OECD. Excise on fossil fuels has reduced in real terms and there are almost no incentives to shift transport to cleaner alternative and renewable fuels or to more energy efficient vehicles.

AusLink was an opportunity to address these transport issues and while the Australian Democrats support the commitment of extra funding to construction and maintenance of Australian transport infrastructure, we are disappointed that this is not the promised comprehensive, strategic, long-term plan of Australia's transport infrastructure needs.

According to the Government:

"A us Link will revolutionise the planning and funding of Australia's national roads and railways by taking a long-term, strategic approach to our long-term future. It represents the most significant change since Federation in the way we tackle the national transport task .. "

1

These are well-meaning words, but they are empty and fundamentally misleading. Firstly, the program is not comprehensive, focussed exclusively as it is on major roads and railways. Urban congestion is dealt with only insofar as it concerns barriers to freight movement and public transport services are entirely missing. It also fails to address the long-term problems inherent in continuing to rely on national highways as

the primary mode of regional freight transport, ignoring the economic and environmental advantages of shifting freight to rail.

The program has been funded for five years (with most of the money allocated), with plans to continue AusLink in future five-year packages. _ As1de from the empty rhetorical flourishes about 'transforming' Australia's transport mfrastructure, there are no clearly defmed aims and verifiable objectives of the AusLink program

1 "A usLink _At A Glance"_ Department of Transport and Regional Services fact sheet, available at

htto://www.dotars.gov.au!auslink/factsheets.aspx

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that is said to inform its development and priorities in years to come. It is impossible to take a long-term, strategic approach without a comprehensive national transport infrastructure plan. Rather, this is a patch-up of existing road and rail systems. By concentrating solely on regional freight networks, ignoring whole areas of infrastructure need such as urban public transport, and by failing to articulate a clear vision for what AusLink is to achieve in the long-term, the Government has failed in its objective before it has even begun.

In respect of this Inquiry into the AusLink bills, we support the general conclusions of the main Committee Report, but believe that they do not go far enough.

Funding Infrastructure - Getting the Balance Right

Across all levels of Government in Australia, roads receive the bulk of all transport infrastructure funding, many times more than the amounts allocated to rail. Funding for infrastructure for bikeways and pedestrian safety, amenity and access remains minuscule. AusLink, which pools road and rail infrastructure funding remains heavily weighted to road transport- $10.9 billion for roads and $1.8 billion for rail - and focused entirely on freight.

The Australian Democrats believe that this balance needs to be addressed as a matter of urgency. The fact that AusLink focuses almost exclusively on regional freight transport means that critical issues such as urban passenger transport and public transport to alleviate congestion are essentially ignored.

Further, the balance of funding priorities within the AusLink pool needs to be shifted, to reflect that the environmental impact of transporting freight can be reduced if the focus shifts from road to rail. Currently 85% of freight on the eastern seaboard is transported via our road networks. One Melbourne-Sydney freight train replaces 150 semi-trailers and rail uses only one third of the fuel per tonne hauled. Unfortunately lack of investment in modem infrastructure has made it hard for rail to be cost competitive as access charges for rail are 30% of operating costs compared with 5% for road. We believe that there should be a rail-specific fund for modernising rail infrastructure, with an emphasis on the east coast route, multimodal exchanges, rail links into ports and nationally consistent regulations, codes and communication systems.

The Democrats support road and rail user charges but note that there is no intention that these will reflect the full externalities, such as air, noise and water pollution, greenhouse emissions, habitat destruction and traffic congestion.

Making AusLink Transparent, Accountable and Strategic

The Australian Democrats are seriously concerned about the extremely broad discretion that has been granted to the Minister in terms of determining funding allocations through the AusLink program. Without wishing to cast any doubts about the sincerity and professionalism of Transport Ministers in general, a system of broad

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and unfettered Ministerial discretion is inherently problematic in that it may raise suspicions about the integrity of the program and the principle of merit-based funding allocations. We believe that the scheme must be run according to clearly established and well-publicised criteria, and the funding decisions must be transparent and accountable.

It is a fundamental point that decisions on the 'worth' of projects should be made according to a triple-bottom-line assessment- that is, not merely on economic criteria. While the economic cost-benefit analysis of any particular project is obviously very important, the established criteria for selection of projects for funding must also take into account the social and environmental impacts of the proposal. Decisions about transport infrastructure funding by their very nature have a major impact on communities, and on our natural environment, and a bottom line that only recognises the monetary aspects will fail to take these essential considerations into account.

We support the proposed concept of a National Transport Advisory Council to assess the merit of projects and make recommendations to the Minister according to the established criteria. Members of this Council must be appointed on merit through a transparent process, and should be chosen to represent the broad basis of interests in the transport sector - including freight, passenger and environmental group representatives.

The Australian Democrats also believe that the recommendations of the Advisory Council should be made according to a comprehensive, long term national transport infrastructure plan - so that decisions are made strategically and not on an ad-hoc basis. This plan should be developed with extensive consultation, effective modelling,

creative alternative transport solutions and an emphasis on environmental, social and economic sustainability. We must take a long term and holistic view of Australia's transport infrastructure needs to ensure that these needs are met both now and into the future.

Lyn Allison Senator for Victoria Leader of the Australian Democrats

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Appendix 1

List of Submissions

1. Mr Peter Brohier (VIC)

1a Mr Peter Brohier (VIC)

1b Mr Peter Brohier (VIC))

2. Victorian Fanners Federation (VIC)

3. National Fanners' Federation (ACT)

4. Railway Technical Society of Australasia Engineers Australia (ACT)

5. Monto Shire Council (QLD)

6. Department of Transport and Regional Services (ACT)

7. Australian Local Government Association (ACT)

8. Australian Trucking Association (ACT)

9. The Warren Centre (NSW)

10. Municipal Association of Victoria (VIC)

11. Local Government Association of South Australia (SA)

12. Outback Areas Community Development Trust (SA)

13. Australian Automobile Association (ACT)

14. Australian Airports Association (VIC)

15. Australian Road Forum (VIC)

16. Local Government Association of Queensland Inc. (QLD)

17. Shoalhaven City Council (NSW)

18. Transport Workers' Union of Australia (VIC)

19. Construction Forestry Mining Energy Union (NSW)

20. NSW Farmers Association (NSW)

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21.

22.

23.

24.

25.

26.

27.

28.

29.

Rail Tram and Bus Union (NSW)

Australasian Railway Association Inc. (ACT)

Civil Contractors Federation (VIC)

The Chartered Institute of Logistics & Transport (NSW)

Western Australian Government (WA)

Australian Logistics Council (NSW)

ACT Government (ACT)

Engineers Australia (ACT)

Sustainable Transport Coalition (W A)

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Appendix 2

Witnesses who appeared before the Committee at the Public Hearings

Friday, 18 March 2005 Parliament House, Canbe"a

Australian Trucking Association Mr Chris Althaus, Chief Executive Mr Neil Gow, National Manager, Government Relations

Department of Transport and Regional Services Mr Michael Mrdak, Deputy Secretary Mr John Elliott, General Manager, AusLink Planning Ms Joan Armitage, General Manager, AusLink Systems and Regional Investment

Bus Industry Confederation Mr Michael Apps, Executive Director

Railway Technical Society of Australasia Dr Philip Laird, Chairman, Government Relations Committee Mr Jon Bailey, Member, Government Relations

Australasian Railway Association Mr Bryan Nye, Chief Executive Officer

Mr Peter Brohier (Private capacity)

Tuesday, 12 April 2005 Parliament House, Canberra

Warren Centre for Advanced Engineering Professor Michael Dureau, Executive Director (by teleconference) Mr Ken Dobinson, Project Director, Sustainable Transport in Sustainable Cities (by teleconference)

Australian Automobile Association Mr John Mcintosh, Executive Director Mr John Metcalfe, Director, Research and Policy

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New South Wales Farmers Association Mr Nick Bryant, Board Member Mr Macneil, Board Member

Australian Road Forum Mr Ian Webb, Executive Director

Civil Contractors Federation Mr Doug Williams, Chief Executive (National) (by teleconference)

Department of Transport and Regional Services Mr Michael Mrdak, Deputy Secretary Ms Joan Armitage, General Manager, AusLink Systems and Regional Investments Mr Robert Hogan, General Manager, AusLink Road Investment

Australian Airports Association Mr John McArdle, National Chairman Mr Kenneth Keech, Chief Executive Officer

Shoalhaven City Council Mr Gregory Pullen, Economic Development Manager

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Appendix 3

Additional information

Additional information accepted as public evidence of the inquiry:

A. Answers to questions put by the Committee C. Miscellaneous further comment H. Submitted during hearings

date type from topic !Hansard paee reference!

18/3/05 H Australian Trucking ACIL Tasman, Trucking- Driving Australia's Association Growth and Prosoeritv, 2004 fp.l6l

18/3/05 H Australasian Railway Port Jackson Partners, The Future of Freight, Association 2005 fp.22]

12/4/05 H Australian Airports form: Budget Planning and Comparative Association Financial Analysis fp.36l

7/4/05 A DOTARS Answers to questions

6/5/05 A DOTARS Answers to questions and

Attachment- Draft ARTC North - South Corridor Strategy 9 February 2005. Attachment- Draft AR TC Hunter Valley Stategy April2005. National Guidelines for Transport System Management in Australia Volume 1: Framework

Overview Volume 2: Project Appraisal Volume 3: Foundation Material

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404

The Senate

Rural and Regional Affairs and Transport Legislation Committee

Provisions of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005

May 2005

405

© Commonwealth of Australia

ISBN 0 642 71517 3

This document was prepared by the Senate Rural and Regional Affairs and Transport Legislation Committee, and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Membership of the Committee Members

Senator the Hon. Bill Heffernan LP, New South Wales Chair Deputy Chair Senator Geoffrey Buckland

Senator Andrew Bartlett*

Senator Jeannie Ferris

Senator Julian McGauran

Senator Ursula Stephens

ALP, South Australia

AD, Queensland

LP, South Australia

LP, Tasmania

ALP, New South Wales

Participating Members

Senator Abetz Senator Allison Senator Bishop Senator Boswell Senator Brown Senator G Campbell Senator Carr Senator Chapman Senator Coonan Senator Eggleston Senator Evans Senator Faulkner

Senator Ferguson Senator Greig Senator Harradine Senator Hogg Senator Hutchins Senator Knowles Senator Lightfoot Senator Ludwig Senator Lundy Senator S MacDonald

Senator Mackay Senator Mason

Senator McLucas Senator Nettle Senator O'Brien Senator Payne Senator Ray Senator Santoro Senator Tchen Senator Watson Senator Webber

*Senator Bartlett replaced Senator Cherry for the Provisions of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005 inquiry.

Committee Secretariat Ms Maureen Weeks, Secretary Ms Rosalind McMahon, Executive Assistant

Parliament House, Canberra Telephone: (02) 6277 3511 Facsimile (02) 6277 5811

Internet: Email: www.aph.gov.au/senate rrat.sen@aph.gov.au

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408

Terms of Reference

Referred by the Senate on 9 March 2005 on the adoption of the Selection of Bills Committee Report No.2 of2005:

The provisions of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign fishing) Bill2005 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 10 May 2005.

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TABLE OF CONTENTS

Membership of the Committee ........................................................................ iii

Terms of Reference .........................................................................•........•.......... v

Table of Contents ..............................•.•...............•......•.................•..........•........ vii

Chapter 1 .............................................................................................................. 1

Introduction .............................................................................................................. !

Conduct of Inquiry .................................... ............................. ........................... ..... 1

Acknowledgements .. ........... ................................. ........................... .. ... ....... .. ... ...... 1

The bill .. ... .... ........................................................ ...... .............................. ... ............ 1

Consideration by the Senate Scrutiny of Bills Committee .......... ............... ........... .4

Chapter 2 .............................................................................................................. 7

The Legislation .......................................................................................................... 7

Introduction .................. ........ ...... .............. .. ................... ......................................... 7

Issues .. .. .......... .............. ..... .. ........... .. ... .. .............................................. .... ............ ... 8

Conclusion .. ........................................... .............. ............................ ... ........ .......... 19

Additional Comments -Labor Senators ........................................................ 21

Summary ................. ....... ..................... .. .............. .. ................... .. ..... ... ... ... ... ....... ... 21

Training ............... ................. ........ .. .. .. .... .. .. ...... .................... .. .... ...... ... ...... ........... 21

Whistleblower protection ..... ........... ................... ....... ..................... ... ... ................ 23

Commonwealth liability .................................................. .. ............... .. .................. 23

Accountability ..................................................... ... ... ........................................... 24

Other issues ..................................................................................................... .. .... 25

Conclusion ........... ..... ...................................... ... ............ ................. ............ .......... 26

Dissenting report by Andrew Bartlett, Senator for Queensland .................. 27

Appendix 1 ......................................................................................................... 29

Witnesses who appeared before the Committee at the Public Hearings

Appendix 2 ......................................................................................................... 31

List of Submissions

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412

Chapter 1

Introduction

Conduct of Inquiry

1.1 The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 was introduced into the House of Representatives on 17 February 2005 and passed on 17 March 2005.

1.2 On 9 March 2005 the bill was referred to the Rural and Regional Affairs and Transport Legislation Committee on the recommendation of the Senate Selection of Bills Committee. In referring the bill the Selection of Bills Committee gave two principal issues for consideration -

• The provisions enabling contract employees, rather than State or Commonwealth officers, to confiscate property and to exercise search powers, including strip searches and the associated accountability mechanisms; and

• The appropriateness of the detention regime, including possible length of imprisonment.

1.3 The Committee advertised this inquiry in The Australian on 16 March and 30 March 2005. The Committee also approached a number of interested organisations to provide evidence at a public hearing. The hearing took place on 17 March 2005 and witnesses are listed at Appendix 1. The Committee received two written submissions

(see Appendix 2).

1.4 The Committee's evidence and submissions are available through the parliament's homepage at http://www.aph.gov.au

Acknowledgements

1.5 In view of the brevity of the inquiry, the Committee appreciates the time and work of those who provided oral and written evidence to the inquiry. Their work has assisted the Committee's deliberations on this bill.

The bill

1.6 The principal purpose of the bill is to strengthen the existing legal framework dealing with illegal foreign fishing within the Australian Fisheries Zone (AFZ) and the Torres Strait Protected Zone. The proposed amendments are designed to ensure that

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breaches of the fishing rights by illegal foreign fishers in all areas of Australia's maritime jurisdiction are more efficiently managed. 1

1. 7 The bill proposes amendments to three existing Acts - the Fisheries Management Act 1991 (Fisheries Act), the Torres Strait Fisheries Act 1984 (Torres Strait Act) and the Migration Act 1958 (Migration Act).2

1.8 Under the Fisheries Act the Australian Fisheries Management Authority (AFMA) has the power to intercept and prosecute suspected illegal foreign fishers in the waters within the AFZ. The Torres Strait Act enforces Australia's international obligations in the Torres Strait Protected Zone, which is a "zone of joint fisheries jurisdiction"3 with Papua New Guinea. The Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as the

Torres Strait, and Related Matters (Torres Strait Treaty) provides for the jcint fisheries jurisdiction. The proposed amendments are consistent with the Torres Strait Treaty.

1.9 Currently, there are some inconsistencies in the provisions for dealing with suspected illegal foreign fishing in the two zones under the Fisheries Act and th.;: Torres Strait Act. Broadly, the amendments proposed in the bill to these two Acts will ensure that the policing of the illegal fishing in the AFZ and the Torres Strait is undertaken by officers with similar powers and responsibilities. The amendments also:

... clarify that an officer controlling a boat, using powers conferred by either of these Acts, is not unlawfully restraining the liberty of any of the people that are on the boat. 4

1.1 0 Consistency between the two Acts will be further achieved by the amendments proposed to the Torres Strait Act relating to automatic forfeiture of boats. 5

1.11 The amendments to each Act also provide for a "fisheries detention regime that is broadly consistent with current immigration detention arrangements. " 6

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005, Explanatory Memorandum, p 3

2 Border Protection Legislation Amendment (Deterrence of illegal Foreign Fishing) Bi112005, Explanatory Memorandum, p 3

3 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 3

4 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Explanatory Memorandum, p 3

5 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005 , Explanatory Memorandum, p 4

6 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 3

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1.12 One of the aims of the new fisheries detention regime is to facilitate a "seamless transfer of detainees from fisheries to immigration detention." 7 There are two primary sets of amendments to contribute to this outcome - the provision of a new class of officer to exercise limited powers8 and the amendments to enable: ·

. . . fisheries officers to exercise the same powers in relation to searches and screening of people to those that currently exist for people detained as unlawful non-citizens in an immigration detention facility. 9

1.13 The new class of officer are to be appointed by the Minister. The officers can include both employees and contractors employed by either AFMA or the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Currently contractors are employed by DlMIA and preform duties under the Migration Act. Under the proposed amendments these contract employees will be permitted to

"perform fisheries detention functions under fisheries legislation." 10 AFMA also have contract employees performing duties under fisheries legislation and these powers will continue.

1.14 The amendments propose the extension of powers to fisheries officers to search and screen people, include the capacity to conduct searches, strip searches and screening of persons. 11 The amendments are included in items 13 and 20 of the bill. Searches can be conducted to find a weapon or evidence of certain prescribed offences

and no warrant is required. Proposed sections 1 7 and 18 set out the provisions relating to strip searches with section 18 detailing the rules for conducting a strip search. The Minister for Agriculture, Fisheries and Forestry in his second reading speech indicated that:

These powers will provide the necessary protection to officers and other detainees, as it will allow then to remove any weapons that a person may be concealing. 12

1.15 In line with the existing provisions of the Migration Act, the bill also proposes that officers have the power to collect personal identity information from detainees. This information can include a number of personal statistics such as height and

7 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 4

8 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 4

9 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005, Second reading speech, p 5

10 Border Protection Legislation Amendment (Deterrence oflilegal Foreign Fishing) Bill2005, Second reading speech, p 4

11 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 5

12 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 5

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weight, but can also include fingerprints and handprints, an iris scan and anything prescribed by regulation so long as it does not include procedures to intimate areas of the body or blood or salvia (proposed new section 26). The purposes of the identification process are spelt out in the legislation (proposed subsection 26(3)) and the Minister informed the House that the purpose was to identify "repeat offenders" and factor "this into their prosecution." 13

1.16 To further strengthen the regulatory regime for illegal foreign fishing the bill also proposes amendments to the Fisheries Act and the Torres Strait Act to broaden the class of persons protected by offences arising from behaviour to obstruct an officer in preforming his/her duty. The proposal is that such an offence will be committed if those involved in the administration of fisheries legislation are obstructed "in the exercise or performance of any power, authority, function or duty under the Act." 14 This amendment is designed to extend the protection currently afforded to AFMA officers to detention officers, translators and medical staff. The offences include assault, resisting or obstructing such a person or "using abusive or threatening behaviour." 15 The Explanatory Memorandum indicates that the amendments will provide such persons with better protection when carrying out their duty. 16

1.17 Finally, the bill proposes to amend Migration Act to ensure that the enforcement visa regime currently existing under that Act "applies consistently to illegal foreign fishing offences under both" 17 the Fisheries Act and the Torres Strait Act.

Consideration by the Senate Scrutiny of Bills Committee

1.18 The Senate Standing Committee on the Scrutiny of Bills has a standing brief to consider all bills as to whether they trespass unduly on personal rights and related matters, and draws attention to any provision of a bill that has a retrospective impact. In relation to the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005 the Scrutiny Committee notes that a number of provisions may trespass on the personal rights of those who be detained or subjected to a search. The provisions that are the subject of comment 8 are:

13 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 5

14 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 6

15 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Explanatory Memorandum, p 4

16 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005, Explanatory Memorandum, p 4

17 Border Protection Legislation Amendment (Deterrence of lllegal Foreign Fishing) Bill 2005 , Explanatory Memorandum, p 4

18 See Senate Standing Co=ittee on the Scrutiny of Bills, Alert Digest No 2 of2005, 9 March 2005, pp 16 to 21

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• Items 1 and 2 of Schedule 1 to the bill which insert a new subsection 84(1BA) into the Fisheries Act and a new subsection 42(2AAA) into the Torres Strait Act. These provisions relate to the clarification of the power of an officer to control a boat (paragraph 1.9)

• Proposed new clause 8 of Schedule lA of the Fisheries Act to be inserted by item 13 of Schedule 1 and proposed new clause 8 of Schedule 2 to the Torres Strait Act to be inserted by item 20 of Schedule 1 which provide for an officer to detain a suspected illegal foreign fisher to investigate whether an offence has been committed. There are currently similar provisions in the Fisheries Act.

• Proposed new clause 15 of schedule IA of the Fisheries Act to be inserted by item 13 of Schedule 1, proposed new paragraph 84(1)(aaa) of the Fisheries Act to be inserted by item 21 of Schedule 1, proposed new subsection 87H(2A) of the Fisheries Act, to be inserted by item 26 of Schedule 1 and proposed new clause 15 of Schedule 2 to the Torres

Strait Act to be inserted by item 20 of Schedule 1 and proposed new paragraph 42(l)(aa) of the Torres Strait Act to be inserted by item 28 of Schedule 1. These provisions provide for searches without search warrants (paragraph 1.14).

• Proposed new clause 17 of Schedule lA of the Fisheries Act to be inserted by item 13 of Schedule 1 and proposed new clause 17 of schedule 2 to the Torres Strait Act to be inserted by item 20 of Schedule 1. These provisions provide for strip searches without search warrants.

(paragraph 1.14).

• A number of provisions declaring various instruments not to be legislative instruments.

The Committee notes that, having commented, the Scrutiny Committee left the Senate to determine whether rights had been unduly trespassed upon.

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418

Introduction

Chapter 2

The Legislation

2.1 In introducing the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 the Minister for Agriculture, Fisheries and Forestry spoke of illegal fishing in Australian waters, particularly the northern waters, as a growing problem. The problem is growing not only in terms of the number of illegal foreign vessels apprehended but also the catches those vessels are taking.

2.2 In the past two calendar years, 299 vessels have been apprehended in Australia's northern waters and 18 vessels suspected of illegal fishing had been detained in the first 2 months of 2005 1• The vessels apprehended can be found to have "large freezer storage facilities on board"2 and are targeting large quantities of reef fish and shark fins. The three vessels apprehended on 26 February 2005, with a total of 4000 kilograms of fish on board, and a vessel apprehended on 3 March 2005 with

176 shark fins, provide an indication ofthe growing problem3•

2.3 The illegal foreign fishing vessels originate in Indonesia. Under a 1974 agreement with Indonesia, Australia does permit some Indonesian fishing in the Australian Fisheries Zone (AFZ). The areas are those that have been traditionally fished by the Indonesians and the arrangements provide for the fishing of specific

species.4 However, the increases in both the number of vessels and the size of the catches may have an impact on the sustainability of Australia's fish stocks. 5

2.4 The Committee acknowledges that the problem of illegal foreign fishing in Australian waters cannot be ignored and notes that the legislation forms part of a government program which includes other measures, including the provision of

Border Protection Legislation Amendment (Deterrence oflllegal Foreign Fishing) Bill2005, Second reading speech, p 1

2 Department of Parliamentary Services, Bills Digest no 121 , 2004-05, 9 March 2005. Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, p 3

3 Department of Parliamentary Services, Bills Digest no 121, 2004-05, 9 March 2005. Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, p 3

4 Department ofPar1iamentary Services, Bills Digest no 121, 2004-05, 9 March 2005. Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005, p 2

5 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 1

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additional resources to both the Australian Fisheries Management Authority (AFMA) and the Australian Quarantine and Inspection Service (AQIS). 6

2.5 The Committee did not receive any evidence during the inquiry to suggest that there was not general support for the principles of the legislation. However, the inquiry provided an opportunity for the Committee to tease out a number of issues, including the proposed new powers provided under the act and the accountability mechanisms included.

Issues

Training Requirements

2.6 During the inquiry the Committee explored the responsibilities and duties of a new class of officers proposed by the legislation.

2.7 The current legislation7 provides for AFMA or the Minister to appoint officers, including those who are members of the Australian Federal Police or a state or territory force, the Defence Force or the Customs Service. There is no proposed change to these existing appointment arrangements. Under the amendments proposed in the bill, officers appointed under the Torres Strait Fisheries Act 1984 (Torres Strait Act) will have their powers extended to include the power to detain. Officers appointed under the Fisheries Management Act 1991 (Fisheries Act) currently have this power. 8

2.8 However, there are also two classes of officers defined in the legislation:

• detention officers;

• authorised officers.

2.9 Under the proposed amendments to both the Fisheries Act and the Torres Strait Act, detention officers are appointed by the Minister and may include contract employees. 9 While detention officers will not have the power to detain a person, they are responsible for the detainees continuing detention, as well as moving the detainees ifrequired. 10

6 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill2005, Second reading speech, p 1

7 either the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.

8 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 2

9 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 2

10 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005, Canberra, p 5

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2.1 0 Both detention officers and fisheries officers can be authorised by AMF A. Those that are 'authorised' become authorised officers and, depending on the authorisation, can conduct "searches, screening, identification tests and those sorts of activities." 11 Authorisation can be made by employment classification providing the necessary training protocols are met, with the exception of authorisations for strip searches. Authorisations for strip searches are made for individual officers. 12

2.11 The Committee notes the link made between training and authorisation. It was highlighted by the Minister when introducing the bill:

An important part of the authorisation process, will see any prospective officers receive comprehensive training in the effective and responsible use of these powers under the relevant Acts. 13

2.12 However, during the hearings, when the Committee sought to establish the legislative provision for the training requirements that would be provided prior to authorisation, the Committee was advised:

There is no requirement in the bill for that [training]. It is part of the discretion of AFMA when authorising those officers. 14

2. 13 This evidence would seem at odds with the Minister's advice to the House. In the ensuing discussion it became clear that AFMA's intention was to replicate the training arrangements that already exist under the current immigration regime. 15

2. 14 In its submission, the Community and Public Sector Union (CPSU) indicated that it: ... believes that minimum training requirements should be inserted into the bill ... 16

2.15 The CPSU argued that the requirement under the Australian Public Service (APS) Code of Conduct and Values for sensitivity to the diversity of the Australian public:

11 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , Canberra, p 6

12 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , Canberra, p 7

13 Border Protection Legislation Amendment (Deterrence of illegal Foreign Fishing) Bill2005, Second reading speech, p 6

14 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , Canberra, p 6

15 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , Canberra, p 6

16 Submission 1, CPSU, p 8

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should be equally applicable to the conduct of all Commonwealth employees, including private sector contractors, to illegal foreign fishers with regard to language and cultural differences. 17

2.16 The powers that can be exercised by authorised officers are significant. The bill proposes that authorised officers will also be granted the power to carry out identification tests, by force if necessary and if authorised. 18

2.1 7 Furthermore, searches, including strip searches, can be conducted without a warrant. Strip searches, however, will be subject to the approval of the Managing Director of AFMA, or the Secretary or a Deputy Secretary of Department of Agriculture, Fisheries and Forestry (DAAF). 19 The legislation also provides that the detainee may request an independent person to be present during the strip search, provided that the independent person is readily available. 20

2.18 Although the Committee accepts the advice from DAFF that AFMA will largely put in place the training currently required by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), it continues to be concerned that the gravity of the powers provided to authorised officers under the proposed amendments will not be met with commensurate training. The Committee notes the advice provided in the joint submission from DAFF, DIMIA and AFMA; under current Migration Series Instruction 347 Strip Searches of Immigration Detainees, the training is mandatory. It advises that:

The strip search training includes:

Civil rights and liberties

Cultural awareness

The grounds for conducting a strip search

The pre-conditions for a strip search

The role of officers involved in conducting a strip search

The procedure for conducting a strip search

The procedures relating to items retained during a search

17 Submission 1, CPSU, p 8

18 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005, Canberra, p 13 and p 19

19 Transcript of Evidence, 17 March 2005, Canberra, p 11

20 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, Canberra, p 14

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Record keeping

Reporting requirements. 21

11

2.19 The Committee is of the view that strip searches are, by their nature an intimidating experience for those that are subject to them. As such, the requirement for training that is linked with these powers in particular, should be explicit in the legislation and subject to parliamentary scrutiny. Given that DIMIA has already detailed the training provisions for those "who are to be authorised to search, screen or strip search a detainee"22 the Committee believes that the legislation would benefit by the inclusion of a specific requirement for training. Accordingly, the Committee makes the following recommendation:

Recommendation 1

2.20 The Committee recommends that the bill be amended to insert a requirement that officers, prior to becoming authorised officers, undertake the training prescribed in a disallowable instrument to be made under the Act.

Contract employees

2.21 The bill provides for the employment of contract staff. These employees are subject to the same authorisation processes as other officers and will therefore undertake the duties of either detention officers or authorised officers. In its submission, the CPSU raised a number of inter-related concerns over the employment

of contract staff, particularly given the "serious law enforcement style powers ... " .23 These concerns include adherence to the APS Code of Conduct; accountability and the protection of employees.

APS Code of Conduct

2.22 Employees of the APS are bound by the Code of Conduct to a stated high standard of professionalism and ethics. The CPSU "believes that this high standard of professional conduct ... has no equivalence in the private sector. "24 They argue that:

The flexibility and responsiveness of the modern APS means that there is no arguable reason why these positions cannot be fulfilled by APS employees.Z5

21 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 5

22 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 4

23 Submission 1, CPSU, p 5

24 Submission 1, CPSU, p 5

25 Submission 1, CPSU, p 5

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2.23 The Committee itself has reservations about the use of contract employees to undertake the duties that include the use of significant powers. During the hearings it sought assurances regarding the selection process of these employees. It was informed that the proposal was similar to that which DIMIA operated and that the contract with the employer imposed certain requirements:

The provisions of the contract outline the nature of the employees. That is not just a security clearance: it is also a character assessment. There are some other criteria within the contract which apply to employees. So it goes beyond just the security clearance.

There is also a requirement in the contract for the police checks which are done prior to a contract employee being engaged in a centre. There is also a requirement for an annual police check thereafter, so that we have ongoing review of, at least, the criminal aspect.26

2.24 The Committee also sought information about any code of conduct that relates to detention officers. DIMIA informed the Committee that GSL Australia, which is contracted by DIMIA, has such a code:

.. .it is important to have a code of conduct for detention officers and for that to be adhered to. GSL Australia have a code of conduct for their officers and they very vigorously apply that code of conduct. Our experience is that when an issue arises they pursue that issue. 27

2.25 The Committee notes that GSL Australia's code of conduct requires the staff to "perform their duties professionally and ethically, at all times. (14.1.8)." 28

2.26 The joint submission provides a comparative analysis of GSL Australia's code of conduct and the APS Code. It identifies 7 of 13 obligations imposed on a public servant under the APS Code of Conduct as being equivalent to those imposed by GSL Australia's code of conduct.29

2.27 The joint submission further identifies the APS Code of Conduct obligations that do not have direct equivalents under the GSL Australia code as the following:

(a) act with honesty and integrity;

26 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, Canberra, p 4

27 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, Canberra, p 8

28 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, Attachment F

29 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, Attachment G

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(b) act with care and diligence;

(c) act in accordance with APS values;

(d) not to make improper use of Commonwealth resources; and

(e) not to disclose information which could be prejudicial to the effective working of government. 30

2.28 The joint submission continues by suggesting that the obligations are either encompassed in another set of obligations (honesty and integrity and care and diligence), dealt with elsewhere (use of resources or disclosure), or not strictly relevant (APS Values).31

2.29 The Committee does not accept that the code of conduct operated by DIMIA's contractors sufficiently incorporates all the necessary obligations stated in the APS Code of Conduct. The argument put forwarded that those obligations that do not have equivalents in the GSL code of conduct are implied by other obligations is not substantiated. While obligations 1, 3, 4, 12 and 14 in the GSL code, for example, are

important obligations relating to how the contract employees conduct their duties and present themselves, these obligations do not require honesty.

2.30 The Committee regards honesty and integrity and a requirment to conduct duties with care and diligence as essential in the environment that these contractors will be employed in. Although it could be argued that these values are so fundamental anyone meeting the other obligations would also have those characteristics, the

Committee is of the view that these values should be required by an explicit statement, just as the GSL code of conduct places a requirement on the staff to act professionally and ethically at all times.

2.31 In this context the Committee notes AFMA's stated intention to "as closely as possible, replicate the system that DIMIA are using."32 The Committee is of the view that AFMA need to improve on that system in relation to obligations required in the code of conduct developed by any contractor. It therefore makes the following

recommendation.

Recommendation 2

2.32 The Committee recommends that AFMA, in negotiating a contract relating to services to be provided in fisheries detention centres, require that a code of conduct be developed for contract staff that includes the values of

30 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department oflmmigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, Attachment G

31 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, Attachment G

32 Fisheries Management Authority, Transcript of Evidence, 17 March 2005, p 4

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honesty and integrity and to act with care and diligence, in addition to those obligations that already exist in GSL's code of conduct.

Accountability

2.33 In its submission, the CPSU also raised the question of the accountability of contract officers in comparison with that of an APS officer. It argues that AFMA would be required "to sue the contractor for breach of contract in the courts"33 if it wished to act upon breaches of the GSL Australia code of conduct by officers. The expense and time involved in taking matters to court would result in only the "most significant breaches"34 being pursued.

2.34 It counters that any breaches of the APS Code of Conduct could be pursued by AFMA in the first instance or the Public Service Commissioner or the Merit Protection Commissioner without recourse to the courts. 35

2.35 In response to the Committee's questions, DAFF indicated that suing the contractor for breach of contract was indeed one option for ensuring that contract employees are accountable for their actions. However, the Committee was also informed that "a complaint could be made through the Ombudsman or to HR.EOC"/6 or "civil or criminal proceedings against them if they [the contractors] have operated beyond their powers. "37

2.36 In evidence, DIMIA provided the Committee with a snapshot of how it manages accountability with its contract employees. Its management focuses on monitoring the work preformed by contracted staff on a day to day basis by on-site DIMIA staff and also through regular visits by Canberra based staff. Also, experts are engaged to "look at particular aspects of service delivery."38 A further role is played by the Ombudsman and HEROC who make regular visits to the DIMIA facilities. Finally, DIMIA's policy on suggestions or allegations of a criminal nature is to refer the matter to the police immediately. 39

2.37 AFMA confirmed that a monitoring program would be set in place, in addition to a continuation of the existing complaints mechanism. This complaints

33 Submission 1, CPSU, pp 5 and 6

34 Submission 1, CPSU, p 6

35 Submission 1, CPSU, p 6

36 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , p 8

37 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , p 8

38 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, p 8

39 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, p 8

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mechanism is open to anyone who is detained, complaints are investigated and AFMA "follow through on it and remedy the cause".40

2. 38 Furthermore, the Committee was informed that:

The power to detain and continue to detain as well as the powers and the manner in which searches, screens, strip searches and identification tests are conducted pursuant to the Bill, are all subject to review under the Administrative Decisions(Judicial Review) Act 1997. Decisions made by officers are also reviewable in some cases under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903.41

2. 39 The Committee accepts that the Government would be required to take a breach of contract through the courts. However, it is of the view that other action and processes would forestall such action. It notes that the monitoring process operated by DIMIA is regarded as successful and that DIMIA considers the contractors to be

diligent in pursuing any matters arising out of the code of conduct. 42

2.40 AFMA proposes to apply a similar process, together with a complaints process.

Protection of employees

2.41 Finally, concerns were raised as to the protection afforded to contracted employees if they are called upon to perform duties which are outside the terms prescribed by the legislation.

2.42 The CPSU's submission argued that for contract employees there will "be no culture of protection to an individual who is under pressure to misuse his or her powers." It continued by inferring that such workers may worry about maintaining future employment contracts with the employers should they resist the pressure.

43

2.43 The Committee explored another aspect of this concern, which is the protection afforded to those who are "whistleblowers". It was advised that the provisions of the Public Service Act 1999 which provide protection to staff of the APS who act as "whistleblowers" do not apply to contract officers. Instead:

If a detention officer who was a contractor had his or her appointment or authorisation revoked because he or she had acted as a whistleblower,

40 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, p 8

4 1 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 8

42 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, Canberra, p 8

43 Submission 1, CPSU, pp 6 and 7

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review of that decision may be possible under the Administrative Decisions (Judicial Review) Act 1997.44

2.44 The Committee notes that approval from senior officers within DAFF or AFMA is required prior to any authorised officer exercising a strip search. Authorisation from a senior authorising officer is also required prior to the use of force to conduct an identification test. The Committee believes that these requirements, together with the well developed monitoring program and complaints procedure (outlined in paragraph 2.36) will act to inhibit any demands for contract officers to inappropriately exercise any of the powers provided under the legislation.

2.45 However, the Committee remains concerned over the lack of consideration that appears to be given to the protection of any contract employee who may act as a "whistle blower". It urges the Government to give further consideration to this issue before the passage of the legislation.

Staff consultation

2.46 In its submission, the CPSU noted the lack of consultation that AFMA and DAFF had undertaken with current staff in relation to the changes proposed by the Bill. It called on these organisations "to engage in appropriate consultation with staff with regards to these issues". 45

2.4 7 In giving evidence to the Committee, AFMA admitted that consultation with its own officers had not been extensive. AFMA argued that, while the fisheries officers located in Canberra tended to be familiar with the provisions of the bill, those located outside Canberra were not. The reason for this was that most officers were state based and "work with state based agencies".46

2.48 AFMA also informed the Committee that a training program was being developed:

... which will be released to the state based fisheries officers once we know exactly what the powers will be after the passage of the bill through parliament. 47

2.49 The Committee welcomes the attempt to properly inform officers about significant changes that will be made to the work they preform and the way in which they do it. However, it does not believe that informing the workers in the field after the passage of the legislation is the best way to manage the changes. The bill may well

44 Submission 2, Joint Submission From Department of Agriculture, Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority, p 6

45 Submission I, CPSU, pp 8 and 9

46 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, p 8

47 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, P 8

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have benefited from a consultation process with those officers undertaking the affected duties. The Committee considers it regrettable that no such consultation took place.

Detention

2.50 The Committee also considered the matter of the appropriateness and length of the detention of those suspected to be illegal foreign fishers.

2.51 At the outset of the hearing DAFF acknowledged that the current

arrangements for the detention of illegal foreign fishers had originated on an ad hoc basis and were based on a small number of detainees. Officers also admitted that the arrangements are presently less than satisfactory. This, together with an increased number of foreigners detained for suspected illegal fishing, required the existing

arrangements to be made "more modem".48

2.52 Under existing arrangements, detainees can be held on their boats within a quarantine zone in the middle of Darwin Harbour. This practice has attracted some criticism, notably in the 1998 report by the Ombudsman,49 and more recently in the Coroner's report on the death of Mansur La ibu. The Coroner, while noting that fisherman preferred to remain with their boats and there were few complaints, also stated:

Furthermore, the standard of such detention in the case of the deceased is also to be deprecated; to keep seven men on a vessel such as the 'Y amdena' for some weeks where their only shelter (and sleeping accommodation) is a small box .. .is unacceptable. 5°

2.53 The Committee notes that under the new proposals there will still be some "boat based detention at Broome and Gove".51 Temporary accommodation facilities will be located at Hom Island. Detainees from the three locations will be transported to facilities in Darwin in "a matter of days; it is about getting an aircraft lined up to

transport people". 52 Coonawarra, the facility at Darwin, will predominately house

48 Department of Agriculture, Fisheries and Forestry, Transcript of Evidence, 17 March 2005 , p 1

49 Administrative arrangements for Indonesian Fisherman detained in Australian Waters, Report under s35A of the Ombudsman Act 1976, July 1998 http ://www.comb .gov.au/publications information/Special Reports!Indo.html accessed 16 March 2005

50 Inquest into the Death of Mansur La ibu [2004] NTMC 020 http ://www.nt.gov.au/justice/docs/courts/coroner/findings/2004/mansur.pdf accessed 26 Apri l 2005

51 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, P 3

52 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, P 3

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detainees suspected of illegal fishing but may also include "a small number of air arrivals and compliance cases". 53

2.54 The Committee notes the concerns expressed about the accommodation of suspected illegal foreign fishers on their boats. It shares the Coroner's view that such accommodation is unacceptable, particularly for an extended period of time. The Committee is of the view that the proposal for a permanent accommodation facility in Darwin is a more satisfactory arrangement.

2.55 The Committee also examined the likely length of stay that a suspected illegal foreign fisher would have in Australia. The Explanatory Memorandum to the Bill indicates that the proposed regime will "facilitate the rapid repatriation of detainees to their home countries".54 In his second reading speech the Minister indicated that an enforcement visa (under the Migration Act) is automatically issued to foreigners when detained by fisheries officers.

2.56 The enforcement visa enables fisheries officers to bring those suspected of illegal fishing into Australia's migration zone so that the suspected offence can be investigated. It ceases on the expiration of the fisheries detention and the fisher becomes a non-citizen. DIMIA has a responsibility to repatriate non citizens "as soon as reasonably practical",55 which in the case of foreign fishers is a short period after their apprehension and prosecution. 56

2.57 During the hearing, the General Manager Operations of AFMA informed the Committee that:

... people are only in fisheries detention for a maximwn of seven days, and often it is a lot less than that. 57

2.58 The Committee contrasts this statement with the figures provided in the 1998 Ombudsman's report that indicates the 1997 figures for the average number of days in detention were 26.58 for Broome and 26.86 for Darwin.58 It acknowledges that, in addition to the maximum of 7 days described by AFMA, there are further days in

53 Department of Immigration and Multicultural and Indigenous Affairs, Transcript of Evidence, 17 March 2005, p 7

54 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005, Explanatory memorandum, p 3

55 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005 , Second Reading Speech, p 4

56 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bi112005 , Second Reading Speech, p 4

57 Australian Fisheries Management Authority, Transcript of Evidence, 17 March 2005, p 7

58 Administrative arrangements for Indonesian Fisherman detained in Australian Waters, Report under s35A of the Ombudsman Act 1976, July 1998 http://www .comb.gov.aulpublications information/Special Reports/Indo.html accessed 16 March 2005

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19

detention pending repatriation. The Committee understands the argument that the 1997 figures for days in detention should be reduced under the proposed new regime and looks forward to evidence of this. ·

Conclusion

2.59 The Committee has considered the provisions of the bill. It notes that the legislative bases for many of the provisions exist in other statutes, and the bill largely proposes the extension of many current practices. Nonetheless, the Committee is of the view that the bill could be improved and makes a recommendation that a requirement for appropriate training be inserted in the legislation.

2.60 The Committee has also made a recommendation relating to the terms of a code of conduct to be developed with any contractor working in fisheries detention centres. The Committee argues that such fundamental requirements as honesty and integrity and the need to act with care and diligence should be explicitly stated.

2 .61 Subject to these recommendations the Committee makes the following recommendation.

Recommendation 3

2.62 The Committee recommends that, subject to recommendation 1, the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 be passed.

Senator the Hon. Bill Heffernan Chair

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Summary

ADDITIONAL COMMENTS LABOR SENATORS

Labor Senators endorse the stated rationale of the bill- the creation of an effective fisheries detention regime to strengthen Australia's capacity to combat suspected illegal fishing by non-citizens in the Australian Fishing Zone and the Torres Strait Protected Zone, including greater capacity for on shore detention.

However, Labor Senators share the concerns expressed in the majority report about the move to authorise private contractors to undertake certain fisheries detention tasks without adequate provision for staff training, or protection of detainee welfare or the public interest.

Labor Senators strongly endorse the majority recommendation that the bill not be passed without amendment providing that all officers, prior to appointment as authorised officers, undertake training prescribed in a disallowable instrument to be made under the Act.

Labor Senators also endorse the recommendation that a code of conduct containing an explicit reference to honesty and integrity, and the obligation to act with care and diligence, be mandated for any contractor engaged to provide staff to perform fisheries detention tasks.

Notwithstanding our decision to endorse the recommendations contained in the majority report, thereby offering conditional support for the bill, Labor Senators hold deep misgivings about measures related to the engagement of private contractors.

We urge the government to reconsider its decision to privatise our national fisheries detention regime- a crucial component of Australia's border protection system.

Training

Labor Senators note with concern the wide range of powers available to contractors appointed as authorised officers under the provisions of the bill.

These powers include the power to move, screen, identify, search and strip search persons in fisheries detention.

The bill provides that all detention officers, including contractors, can be appointed as authorised officers subject only to "authorisation as provided by AFMA." 1

Labor Senators are concerned that the bill contains no training provisions despite an undertaking from the Minister during his second reading speech that "[a]n important

1

RRA&T 6, 17 March 2005

433

22

part of the authorisation process will see any prospective officers receive comprehensive training in the effective and responsible use of these powers under the relevant acts. "2

Indeed, according to evidence to the committee, training is discretionary:

Senator O'BRIEN-The minister said in his second reading speech that 'prospective officers will receive comprehensive training in the effective and responsible use of their powers' and he describes this training as 'an important part of the authorisation process'. Where in the bill can I fmd the detailed requirement for training?

Mrs Palfreyman-There is not a requirement in the bill for that. It is part of the discretion of AFMA when authorising those officers. 3

It is of further concern to Labor Senators that, despite the provision of detailed information about the protocols that apply in the operation of the immigration detention regime, no guidelines for fisheries detention were provided to the committee.

The committee was told in evidence that:

"Guidelines for AFMA's purposes here may not have been developed as

The committee was told that Australian Fisheries Management Authority (AFMA) intends to replicate the immigration detention system, including the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) contract and protocols5, and was provided with documents outlining DIMIA's relationship with its contract service provider GSL Australia.

The joint departmental submission to the committee's inquiry heavily relied on the existing immigration detention regime to explain the operation of the government's proposed fisheries detention regime.

However, Labor Senators note that no decision has been made about the contract management of the new fisheries detention facility in Darwin, 6 and believe evidence about the management of the immigration detention regime, including GSL Australia's internal procedures, needs to be weighted accordingly.

2

House of Representatives, Hansard, 17 February 2005 3

RRA&T 8, 17 March 2005 4

RRA&T 6, 17 March 2005 5

RRA&T 6, 17 March 2005 6

RRA&T 4, 17 March 2005

434

23

A rigorous and effective training regime, particularly for authorised officers, is critical for detainees and staff and the maintenance of public confidence in the fisheries detention regime.

Whistleblower protection

Labor Senators note with concern that the bill provides contract staff with no 'whistleblower' protection. 7

W e endorse the call in the majority report for the government to give this matter urgent consideration before passage of the bill.

Commonwealth liability

Labor Senators are also concerned about the lack of clarity with respect to Commonwealth liability for injuries sustained by a contractor in the course of his or her duties. During its hearing on 17 March 2005 the committee was advised:

Mr Moroney-.. . In relation to any injury suffered by a detention officer, it would depend upon the terms of the contract between the Commonwealth and that contractor. There might be circ*mstances of the injury itself where, under the laws of negligence, an ongoing employee of the Commonwealth might be liable as a matter of negligence-and therefore there might be some vicarious liability on the part of the Commonwealth. But I would not put down a general proposition, at least from Immigration's perspective and the way things work in our portfolio, that there would be an automatic right for a detention officer to take action against the Commonwealth for any

. . 8

ill jury.

The joint departmental submission lodged subsequent to the hearing contained this advice:

"Depending on the circ*mstances, if an officer or detention officer were harmed during the course of their lawful duties, it is possible they would be covered by the scheme established by the Safety, Rehabilitation and Compensation Act 1988." 9

The uncertain nature of oral evidence and highly qualified language used in the joint departmental submission give Labor Senators no comfort with respect to the intent to protect the rights of workers engaged to perform fisheries detention tasks under contract.

On a related matter, Labor Senators are concerned that the discretionary application of provisions designed to protect the interests of detainees subject to strip searches provide detainees and staff with inadequate protection.

7

Joint submission from DAFF, DIMIA & AFMA, pg.6 8

RRA&T 19, 17 March 2005 9

Joint submission from DAFF, DIMIA & AFMA, pg.6

435

24

The bill provides that authorisation of a strip search must be recorded in writing but explicitly provides that failure to do so does not affect the validity of the search. 10

In the interests of detainees and staff, Labor Senators urge the government to reconsider its decision to grant de facto discretionary status to the requirement that authorisation of strip searches be recorded in writing.

Accountability

Labor Senators do not accept the validity of the claim by the Department of Agriculture, Fisheries and Forestry (AFFA), AFMA and DIMIA that the code of conduct employed by current DIMIA contractor GSL Australia with respect to immigration detention is "broadly equivalent" to the Australian Public Service (APS) Code of Conduct. 11

Labor Senators prefer the view put in the Community and Public Sector Union (CPSU) submission that the APS Code of Conduct "binds APS employees to the highest standards of professional and ethical conduct" that has no direct equivalent in the private sector. 12

We note the CPSU's contention, not rebutted by AFFA, AFMA or DIMIA, that:

"Any attempts by the Australian Fisheries Management Authority (AFMA) to upholding the GSL Code of Conduct for contract detention officers would require AFMA to sue the contractor for breach of contact in the courts. This would be expensive and time consuming, creating a significant disincentive from upholding the APC Code of Conduct from all but the most significant breaches."

Indeed, joint departmental evidence served to confirm the contention of CPSU submission related to accountability:

Senator O'BRIEN-... How will detention officers, including those appointed as authorised officers, be held accountable for their actions?

Mrs Palfreyman-Through the normal means. If they are a contractor a complaint could be made through the Ombudsman or to HREOC. They could be sued for a breach of contract. People could take civil or crinllnal proceedings against them if they have acted beyond their powers. 13

10 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005, cl.17(5)(b), cl.17(7), pg.19 & cl.17(5)(b), cl.17(7), pg.65 11

Joint submission from DAFF, DIMIA & AFMA, pg.3 12 CPSU submission, pp.4-5 13

RRA&T 8, 17 March 2005

436

It is of particular concern that the Commonwealth had to seek "GSL authorisation" before providing the committee with a copy of the code of conduct in force with respect to the performance of contracted immigration detention duties. 14

25

Labor Senators are concerned that any sub-contracting of staff positions by the appointed contractor would serve to further erode the capacity of the Commonwealth to maintain appropriate standards of conduct. 15

Labor Senators share the fear expressed in the CPSU submission that the proposed arrangements present a "serious gap in accountability for the exercise of law enforcement powers."16

We note departmental evidence that under the proposed arrangements the Commonwealth will not have the power to dismiss a contracted officer. The Commonwealth will merely possess the right to remove authorisation granted to a contracted officer under the Act and, in some circ*mstances, have the right to prevent individuals from working in a detention centre. 17

Finally, Labor Senators note that the committee was not presented with a proposed code of conduct for fisheries detention staff due to the failure to yet develop AFMA guidelines. 18

Other issues Staff consultation

Labor Senators regret the government's failure to consult with existing fisheries officers on the provisions of this bill. 19

In our view, the bill would have benefited from the experience and knowledge of AFMA officers currently engaged in fisheries detention duties.

We also believe the committee's inquiry would have benefited from the appearance of fisheries officers engaged in fisheries detention and sufficiently briefed on the provisions of the bill.

Complexity

Labor Senators question the administrative efficacy of the proposed fisheries detention regime involving the appointment of three tiers of officers engaged in fisheries detention duties - officers, detention officers and authorised officers.

14 RRA&T 8, 17 March 2005 15 CPSU submission, pg.7 16

CPSU submission, pg.7 17 RRA&T 14, 17March2005 18

RRA&T 6, 17 March 2005 19 RRA&T 8, 17 March 2005

437

26

We note the inaccurate advice provided to the committee about search powers possessed by nurses working in immigration detention centres20 (corrected in the subsequent joint departmental submission to the inquir!1).

It is a matter of concern that DIMIA was unable to explain the operation of the current DIMIA regime without significant error, especially when the proposed fisheries detention regime is based on DIMIA arrangements.

Rationale

The CPSU submission to the committee states:

"The flexibility and responsiveness of the modem APS means that there is no arguable reason why these positions [officers, detention officers, authorised officers] cannot be fulfilled by APS employees."22

While noting the government's intention to align the fisheries detention regime with the immigration detention regime, it is the view of Labor Senators that the government has not convincingly made the case for the adoption of the immigration detention regime for the purpose of fisheries detention, especially when on shore detention at Darwin will overwhelmingly concern fisheries detention matters.

23

Conclusion Labor Senators endorse the majority report and its qualified support for passage of the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 but have deep reservations about the impact of engaging private contractors

to perform fisheries detention tasks.

Senator Geoff Buckland (Deputy Chair) (ALP, South Australia) Senator Ursula Stephens (ALP, New South Wales) Senator Kerry O'Brien (ALP, Tasmania)

20 RRA&T 7, 17 March 2005 21 Joint submission from DAFF, DIMIA & AFMA, pg.4 22

CPSU submission, pg.5 23 RRA&T 7, 17 March 2005

438

Dissenting report by Andrew Bartlett, Senator for Queensland

I support the general principle of ensuring uniformity in the laws and practices surrounding fisheries and immigration detention.

I am also supportive of the concerns raised in the Committee's main report surrounding contract employees and of consequential amendments along the lines of those proposed.

The Committee's Inquiry did not examine in any depth the issue of the appropriateness of the detention regime, but recent publicity about a range of incidents surrounding immigration detention raises very large questions about both its appropriateness and its adequacy.

As one example, the 5th May judgement by Finn J in S v Secretary DIMIA and M v Secretary DIMIA contained some scathing findings of failings in duty of care of detainees. Some of these findings go to the heart of the contracting (and sub­ contracting) arrangements surrounding detention.

In such circ*mstances, I believe it is unwise to further expand the reach of detention laws until such time as a proper review of the whole regime has occurred.

Recommendation: Consideration of the Bill by the Senate be deferred until such time as a comprehensive review has been undertaken into the adequacy and appropriateness of the entire immigration and fisheries detention regimes.

Senator Andrew Bartlett Australian Democrat

439

440

Appendix 1

Witnesses who appeared before the Committee at the Public Hearings

Thursday, 17 March 2005 Parliament House, Canberra

Department of Agriculture, Fisheries and Forestry Mr Daryl Quinlivan, Executive Manager, Fisheries and Forestry Division

Department of Immigration and Multicultural and Indigenous Affairs Mr Stephen Davis, First Assistant Secretary, Unauthorised Arrivals and Detention Division Mr Mark Duncanson, Assistant Director, Unauthorised Arrivals and Detention Mr Matthew Moroney, Principal Legal Officer and Director, Detention Policy Section

Australian Fisheries Management Authority Mr Paul Murphy, General Manager Operations Mr Rohan Wilson, Senior Manger, Compliance Policy

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442

Appendix 2

List of Submissions

1. CPSU

2. Joint submission from Department of Agriculture Fisheries and Forestry, Department of Immigration and Multicultural and Indigenous Affairs, and Australian Fisheries Management Authority.

3. Confidential

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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY PAPER No. 173 of 2005 ORDERED TO BE PRINTED

ISSN 0727 4181

\

Senate Legislation Committees Consolidated reports on the consideration of bills January-June 2005 Vol. 2 Legal and Constitutional, Rural and Regional Affairs and Transport (2024)

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