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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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These regulations repeal and re-make the Broadcasting Services (Transmitter
Access) Regulations 2001, while making amendments to Australian
Competition and
Consumer Commission arbitration proceedings. This includes making some offence
provisions strict liability and reducing
the corresponding penalties, removing
the defence of 'reasonable excuse' in relation to witnesses, and enabling the
Commission to
make some decisions based on paper submissions only
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Portfolio
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Communications, Cyber Safety and the Arts
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Authorising legislation
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Right
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Freedom of expression and assembly
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Status
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Concluded examination
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1.265 The committee requested a response from the minister in relation to the regulations in Report 1 of 2020.[2]
1.266 These regulations deal with the arbitration of disputes by the Australian Competition and Consumer Commission (the ACCC) in relation to access to broadcasting transmission towers and designated associated facilities under various provisions in the Broadcasting Services Act 1992 (the Act).
1.267 These regulations repeal and replace the Broadcasting Services (Transmitter Access) Regulations 2001, which were due to sunset. Under section 31 of the regulations, a person commits an offence if they:
• insult, disturb or use insulting language towards a member of the ACCC who is exercising powers, or performing functions or duties, as a member of the ACCC for the purposes of an arbitration hearing;
• interrupt an arbitration hearing; or
• create a disturbance, or participate in creating or continuing a disturbance, in a place where an arbitration hearing is being conducted.
1.268 The penalty for this offence is 30 penalty units (currently $6,300).[3]
1.269 Prohibiting the use of 'insulting' language or communication, or the creation of a disturbance (which could include a lawful peaceful protest) in a place where an ACCC arbitration hearing is being held, engages and may limit the rights to freedom of expression and assembly.
1.270 The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual's choice.[4] This right embraces expression that may be regarded as deeply offensive, subject to the provisions of article 19(3) and article 20 of the International Covenant on Civil and Political Rights (ICCPR).[5] The right to freedom of assembly protects the freedom of individuals and groups to meet and engage in peaceful protest and other forms of collective activity in public, even if it is disruptive.[6]
1.271 The initial analysis considered that further information was required in order to assess the compatibility of this measures with the rights to freedom of expression and assembly, and in particular:
• what is the objective of the measure;[7]
• are there are any less rights restrictive means of achieving this objective; and
• what safeguards are in place to protect the rights to freedom of expression and assembly.
1.272 The full initial analysis is set out in Report 1 of 2020.
1.273 The committee noted that this instrument engages and limits the rights to freedom of expression and assembly. The committee sought the minister's advice as to the compatibility of this measure with the rights to freedom of expression and assembly, and in particular the matters set out at paragraph [1.271].
1.274 The minister advised:
Section 31 supports the ACCC's power under section 13 of the Broadcasting Services (Transmitter Access) Regulations 2019 (TA Regulations) to control the way that arbitration hearings proceed and to address improper and threatening behaviour. The provisions preserve the integrity and due conduct of the public arbitration proceedings by discouraging the use of insulting language towards a member of the ACCC who is exercising powers, or performing functions or duties, as a member of the ACCC for the purposes of an arbitration hearing; or interrupting an arbitration hearing; or creating a disturbance, or participate in creating or continuing a disturbance, in a place where an arbitration hearing is being conducted.
During drafting of the TA Regulations, the ACCC process in the TA Regulations was assessed by Attorney-General Department officials as meeting the requirements for an Alternate Dispute Resolution mechanism.
While the offence under section 31 has moved to a strict liability regime under the new TA Regulations (with the safeguard of the privilege of
self-incrimination), the objective of section 31 is to ensure that the public ACCC arbitration proceedings can be conducted in an orderly, civil and appropriate manner and in such a way that also protects the rights and freedoms of others (including the participants of the proceedings at risk. The TA Regulations aim to set a high threshold which ensures that inadvertent and accidental actions of people are not captured by the offence provisions, while ensuring that the ACCC process maintains integrity and accountability.
I consider the pursuit of this public order objective, which creates some limitation on the rights to freedoms of expression and assembly (by operation of the offence provision at section 31), strikes an appropriate balance between the pursuit of this legitimate objective and the freedoms. In this case, there is a rational connection between the objective of the measure the need to infringe the particular rights of freedom of expression and assembly.
The behaviours identified in section 31 would arguably not be accepted by any of the participants in an ACCC arbitration. There is also a continued expectation that such behaviours would not be tolerated in the context of a statutory arbitration process being conducted in a civil society and if breached, the consequence of a penalty is not unreasonable. The underpinning objective of the ACCC arbitration mechanism is to ensure that access disputes are resolved in an efficient and timely manner and discourage conduct of parties to delay access to transmitter facilities, vital to the delivery of broadcasting services to the public.
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) allow for some restrictions to be placed on the freedoms. Consistent with the ICCPR and the ICESCR:
• the restriction on the freedoms imposed by section 31 is expressly provided for by legislation; and is necessary to achieve the desired purpose and objective of maintaining public order in connection with the conduct of the ACCC arbitration hearings and proceedings;
• the dealing with these human rights is proportionate to the achievement of the objective of maintaining public order.
In developing the TA Regulations, regard was had to whether there were less restrictive means of achieving the objective of maintaining public order and it was concluded that there was not, particularly in light of the potential public disorder that could arise if there was no meaningful deterrent for insulting, disruptive behaviour or unreasonable disturbances.
Furthermore, during targeted consultation on the draft Regulations, no concerns were raised by stakeholders about section 31 not adequately achieving the correct balance between freedom of expression and this offence provision. I am satisfied that there is a clear understanding of the behavioural standard expected by participants in the ACCC arbitration process and section 31 provides [an] effective and proportionate mechanism to ensure the maintenance of public order and in connection with the conduct of the ACCC's public arbitration hearings.
The continued application of the common law privilege against self-incrimination provides an effective and important safeguards to protect the rights of freedom of expression and assembly.
The Committee may also wish to note that a Replacement Explanatory Statement for the TA Regulations was registered on 14 February 2020. This was in response to the Senate Committee for Scrutiny of Delegated Legislation views about the need for explicit statements that there was no abrogation of the privilege against self-incrimination for all relevant offences in the Regulations (including the offence under section 31). The revised wording also makes it very clear that there are safeguards in place, particularly for relevant offences.
1.275 The minister has advised that section 31, which prohibits the use of 'insulting' language or communication, or the creation of a disturbance in a place where an ACCC arbitration hearing is being held, is intended to ensure that public ACCC arbitration proceedings are conducted in an orderly, civil and appropriate manner. The minister has also advised that the identified behaviours would arguably not be accepted by any of the participants in the context of a statutory arbitration process.
1.276 The rights to freedom of expression and assembly may be subject to permissible limitations where they are demonstrated to be necessary to protect the rights or reputations of others, national security, public order, or public health or morals.[9] Such limitations must also be rationally connected and proportionate to such objectives.[10] Ensuring that ACCC proceedings are conducted in an orderly manner would likely constitute a legitimate objective for the purposes of international human rights law.
1.277 In relation to whether the limitation on the rights to freedom of expression and assembly is proportionate to the objective sought to be achieved, it is also necessary to consider if there are any less rights restrictive means of achieving the stated objective and what safeguards are in place to protect the rights to freedom of expression and assembly. The minister has advised that it was considered that there were not less rights restrictive means of achieving this objective, in light of the potential public disorder that could arise if there was no meaningful deterrent for insulting, disruptive behaviour or unreasonable disturbances. However, it is noted that section 31 makes it a criminal offence to insult an ACCC arbitrator, which is subject to 30 penalty units (currently $6,300). It is not clear why it is necessary, in order to achieve the objective that ACCC proceedings are conducted in an orderly and civil manner, to make this a criminal offence, rather than enabling the arbitrator to direct a person to leave who is disrupting proceedings. In addition, it is an offence to create or participate in a disturbance simply 'in a place where an arbitration hearing is being conducted'. This is not linked to the disturbance actually disturbing the hearing. It would appear that, as this is currently drafted, a person participating in a peaceful protest on the street outside the building where the arbitration hearing is taking place, which does not in fact disturb the proceeding, could be liable to a criminal penalty (if they were reckless as to whether an arbitration proceeding was taking place).
1.278 In relation to safeguards, the minister has advised that the regulations aim to establish a high threshold, which ensures that inadvertent and accidental actions of people are not captured by the offence provisions, and ensures that the ACCC process maintains integrity and accountability. In this respect, it is relevant that, unlike the offences under sections 27-30, an offence under section 31 is not one of strict liability. This means that intention would be required to be proven with respect to particular conduct, or recklessness proven with respect to a circumstance or result.[11]However, the term 'insulting' could capture a very broad range of communications, including those related to peaceful and lawful protests, and would appear to encompass language which may itself be insulting, but which nevertheless does not impede the functioning of an ACCC arbitration proceeding. Aside from this assurance from the minister, it remains unclear what safeguards would operate in practice to ensure that this offence provision would only prohibit conduct which deliberately interferes with the integrity and accountability of ACCC processes, or which deliberately impedes proceedings themselves.
1.279 Consequently, it does not appear that making it an offence for a person to insult, disturb or use insulting language towards an ACCC member would constitute a proportionate limitation on the right to freedom of expression. In addition, it does not appear that making it an offence to create, or participate in, a disturbance 'in a place where an arbitration hearing is being conducted' would constitute a proportionate limitation on the right to freedom of assembly and freedom of expression.
1.280 The committee notes that this instrument prohibits the use of insulting language and the creation of any disturbances in a place where an arbitration hearing of the Australian Competition and Consumer Commission is being held.
1.281 The committee thanks the minister for this response,[12] and notes his advice that the measure is intended to ensure that public ACCC arbitration proceedings are conducted in an orderly, civil and appropriate manner. The committee considers that ensuring that ACCC proceedings are conducted in an orderly manner is a legitimate objective for the purposes of international human rights law.
1.282 However, the committee notes that, as currently drafted, imposing a criminal penalty for insulting an ACCC member undertaking an arbitration proceeding, or for creating or participating in a disturbance near such a proceeding, does not appear to constitute a permissible limitation on the rights to freedom of expression and assembly. The committee considers that the proportionality of this measure would be assisted if the regulations were amended to:
• clarify that section 31 is directed towards conduct which is intended to interrupt, disturb, impede or otherwise compromise the integrity of ACCC proceedings, and does not encompass insulting language which does not, by itself, interrupt or impede proceedings; and
• provide that a person does not commit an offence by exercising their right, by itself, to engage lawfully in advocacy, protest or dissent.
1.283 The committee considers it would be appropriate if the statement of compatibility to the regulations were amended to acknowledge the engagement of the rights to freedoms of expression and assembly by this measure.
1.284 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Broadcasting Services (Transmitter Access) Regulations 2019 [F2019L01248], Report 9 of 2020; [2020] AUPJCHR 117.
[2] Parliamentary Joint Committee on Human Rights, Report 1 of 2020 (5 February 2020),
pp. 17-19.
[3] A 'penalty unit' is defined as $210 (subject to indexation) under Crimes Act 1914, section 4AA.
[4] International Covenant on Civil and Political Rights (ICCPR), article 19(2).
[5] UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [11]. Article 20 of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’
[6] ICCPR, article 21; UN Human Rights Committee, General Comment No 25: Article 25 (Participation in public affairs and the right to vote) [8]. The Committee notes that citizens take part in the conduct of public affairs, including through the capacity to organise themselves.
[7] Noting that under articles 19(3), 20 and 21(3) of the ICCPR any limitation on the rights to freedom of expression and assembly must be demonstrated to be necessary to 'protect the rights or reputations of others, national security, public order, or public health or morals' or to prohibit ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.
[8] The minister's response to the committee's inquiries was received on 21 June 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[9] ICCPR, articles 19(3) and 21.
[10] See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005); Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.
[11] See, Criminal Code At 1995, sections 5.1 and 5.6.
[12] It is noted that the minister's response was received almost four months after it was first requested. The committee notes that the timeliness of ministerial responses is a key component of committee's dialogue function, and its capacity to assess the compatibility of legislation with human rights.
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