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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Radiocommunications Act 1992 to:
• clarify the roles of the minister and the Australian Communications
and Media Authority;
• amend the spectrum allocation and re-allocation processes;
• reduce regulatory barriers between licence types;
• amend device supply schemes and equipment regulation; and
• introduce a revised compliance and enforcement regime
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Portfolio
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Communications, Cyber Safety and the Arts
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Introduced
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House of Representatives, 27 August 2020
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Rights
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Criminal process rights
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Status
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Concluded examination
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2.230 The committee requested a response from the minister in relation to the bill in Report 11 of 2020.[2]
2.231 This bill seeks to amend the Radiocommunications Act 1992 (Radiocommunications Act) to modernise the legislative framework for managing radiofrequency spectrum. Schedule 4 seeks to confer on the Australian Communications and Media Authority (ACMA) the power to make rules prescribing standards of equipment, and imposing obligations and prohibition on equipment, including by establishing civil and criminal penalties for non-compliance. It also seeks to enable ACMA to regulate the operation, supply, importation or use of radiocommunications equipment.[3] Pursuant to proposed section 156, ACMA would have the power to make equipment rules by legislative instrument.[4] Such rules may impose obligations or prohibitions with respect to equipment.[5] To enable ACMA to enforce such matters, the bill further seeks to establish a series of criminal offences and corresponding civil penalties including those relating to: breach of equipment rules and permit conditions;[6] failure to comply with an interim or permanent equipment ban;[7] and non-compliance with recall notices.[8] In addition, Schedule 6 seeks to establish corresponding offence and civil penalty provisions relating to: the unlicensed operation of radiocommunications devices,[9] and unlawful possession of radiocommunication devices.[10] It also seeks to replace existing offence provisions with civil penalties for matters including contravening conditions of an apparatus licence;[11] the use of a transmitter from a foreign vessel, aircraft or space object;[12] and causing interference with radiocommunications.[13]
2.232 By providing for the creation of equipment rules, which would seek to protect persons from any adverse health and safety impacts attributable to radio emissions, the measures in this bill may promote the right to health.[14] However, with respect to the enforcement of measures in the bill, some of the proposed civil penalties in Schedule 6 would be up to 500 penalty units (currently $111,000),[15] and Schedule 4 would provide for civil penalties of up to 1000 penalty units ($222,000). Under Australian law, civil penalty provisions are dealt with in accordance with the rules and procedures that apply in relation to civil matters (for example, the burden of proof is on the balance of probabilities). However, if the proposed civil penalty provisions are regarded as 'criminal' for the purposes of international human rights law, they will engage the criminal process rights, including the right to a fair trial and the prohibition on retrospective criminal laws. [16]
2.233 Further information is required in order to conduct a full assessment of the potential limitation on criminal process rights, in particular:
(a) whether the proposed civil penalties in Schedules 4 and 6 of the bill could apply to members of the public, including volunteers working under an organisation which holds a radiocommunications licence; and
(b) whether any of the civil penalties in Schedule 4 could be characterised as criminal for the purposes of international human rights law, and if so, how are they compatible with criminal process rights.
2.234 The committee noted that these measures may promote the right to health, by addressing any potential adverse health or safety effects of radio emissions. In addition, the committee noted that some of the proposed civil penalties in this bill may engage criminal process rights, if those civil penalties are more properly to be regarded as criminal penalties for the purposes of human rights law. The committee noted that if this were the case, the civil penalty provisions in question must be shown to be consistent with the criminal process guarantees.
2.235 In order to form a concluded view of the human rights implications of this bill, the committee sought the minister's advice as to the matters set out at paragraph [2.233].
2.236 The full initial analysis is set out in Report 11 of 2020.
2.237 The minister advised:
Civil penalty provisions in Schedules 4 and 6 of the Bill that apply to individuals
Schedule 4 of the Bill repeals and substitutes Part 4.1 of the Act which deals with the regulation of radiocommunications equipment and prohibitions regarding possession and use. The effective regulation of equipment is necessary to contain interference to radiocommunications, provide for the electromagnetic compatibility of equipment, and to protect the health and safety of individuals from adverse effects attributable to radio emissions.
Schedule 4 of the Bill contains a number of civil penalty provisions that could apply to an individual in some circumstances. These provisions include:
• non-compliance with an interim ban on equipment related to the operation of such equipment in proposed section 170, and
• non-compliance with a permanent ban on equipment related to the possession or operation of such equipment in proposed section 176.
While these provisions can apply to individuals, the high levels of civil penalty available under section 176 would not apply until processes specified in the Bill had been undertaken. These include the Australian Communications and Media Authority (ACMA) issuing a permanent ban by legislative instrument, following public consultation, and the expiry of any amnesty period determined by ACMA, during which the individual would have the opportunity to forfeit the equipment without penalty. It is also expected that alternative enforcement options will generally be more appropriate in the case of non-compliance by individuals (discussed more below).
Schedule 6 of the Bill introduces a graduated set of enforcement tools to enable ACMA to take proportionate action in response to non-compliance with the provisions of the Act. As part of this, Schedule 6 introduces several civil penalty provisions and also repeals a number of the current criminal penalties and replaces these with civil penalty provisions where this provides a more appropriate response than a criminal sanction.
Schedule 6 also contains a number of civil penalties that could, in some circumstances, apply to an individual. These provisions include amendments to:
• section 46, which concerns the operation of a radiocommunications device without a licence;
• section 47, which concerns the unauthorised possession of a radiocommunications device; and
• section 197, which concerns reckless conduct that may result in substantial interference, disruption or disturbance to radiocommunications.
Sections 46 and 47 would not apply to individuals who were working for an organisation that holds an appropriate licence under the Act. Section 197 concerns conduct that can cause significant harm to radiocommunications and risks to health and safety.
The remaining civil penalty provisions in Schedules 4 and 6 to the Bill apply to either licensees or businesses that deal with radiocommunications equipment and, consistent with related advice in the Statement of Compatibility with Human Rights contained in the Explanatory Memorandum to the Bill, this class of persons can reasonably be expected to be aware of their obligations under the legislation.
Characterisation of the civil penalty provisions
Having regard to the aims, quantum, exemptions and broader regulatory context, I consider it is appropriate to conclude that these civil penalty provisions should not be regarded as criminal penalties for the purposes of human rights law.
The civil penalties in the Bill are intended to regulate conduct in a manner proportionate with reference to the regulatory context, and the nature of the regulated industry.
The civil penalty provisions, including the instances where a comparatively high civil penalty may be applied (for example, the proposed section 176), are designed to be commensurate with the potential harm caused in the form of disruption to radiocommunications and risks to health and safety from non-compliant radio emissions. The amount of the penalties is in line with similar penalties in regulatory regimes relating to product bans under the Australian Consumer Law (ACL) and the transportation of dangerous goods. Under the ACL, non-compliance with a product ban attracts the same amount of penalty for both the civil penalty and the offence.
The amount of the civil penalties was also determined based on the considerations set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, published by the
Attorney-General's Department.
The Act will also provide suitable exemptions from these civil penalty provisions that are relevant to their characterisation as civil penalties for the purposes of human rights law.
Section 27 of the Act allows ACMA to determine that acts or omissions by a person performing their duties or functions in a specified organisation or in relation to defence, law enforcement or the response to an emergency are exempt from all or part of Parts 3.1, 4.1 or 4.2. This includes a person performing their duties as part of a firefighting, civil defence or rescue organisation. The proposed subsection 269(6) in Schedule 4 to the Bill also provides that a person is not liable to a civil penalty for conduct that is reasonable in response to an emergency.
In relation to members of the public, the Act provides for the exemption of persons from licensing provisions in the Act in circumstances where it is considered appropriate. For example, section 49 of the Act provides that a person operating a radiocommunications device in an emergency does not contravene the prohibitions in sections 46 and 47 requiring a person operating or possessing a device to have a licence.
In addition, the civil penalties are part of a graduated set of enforcement tools that also include infringement notices (which extinguish future liability and have a maximum penalty of 12 penalty units for individuals) and forfeiture notices (which extinguish future liability on the condition that non-compliant equipment is forfeited to ACMA). These additional tools are designed to assist ACMA to deal proportionately with lower level non-compliance with the Act, such as inadvertent contraventions by individuals.
In this context, I consider that the civil penalty provisions should not be characterised as criminal penalties for the purposes of human rights law.
Protection of criminal process rights
It is also important to note that the criminal process guarantees contained in the ICCPR are not limited by the provisions of the Bill. This includes the right to the presumption of innocence, the right to a fair trial and the right not to be tried twice for the same offence.
The right to a fair hearing is not limited by the Bill. The proposed section 269 in Schedule 6 to the Bill requires that the hearing must be by the Federal Court or the Federal Circuit Court of Australia, thus meeting the requirement for the hearing to be by a competent, independent and impartial tribunal established by law. Under section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a relevant court, which must consider all relevant matters before determining the amount of the penalty.
The right not to be tried twice for the same offence is also not limited. While a small number of provisions (for example, the proposed section 176) contain a penalty for an offence as well as a civil penalty, protections are in place through sections 88 and 89 of the Regulatory Powers (Standard Provisions) Act 2014. These sections apply to all civil penalty provisions in the Bill and mean that a civil penalty cannot be imposed by a court if a criminal penalty has already been imposed.
2.238 The minister provided further information as to whether and in what circumstances the civil penalties contained in the bill may apply to members of the public, or to individuals working on behalf of organisations. The minister noted that the Act allows ACMA to determine that acts or omissions by a person performing their duties or functions in a specified organisation or in relation to defence, law enforcement or the response to an emergency are exempt from all or part of the Act as it relates to unlicensed radiocommunications; standards and other technical regulation; and offences relating to radio emission. The minister stated that this includes a person performing their duties as part of a firefighting, civil defence or rescue organisation. The minister further noted that the bill provides that a person is not liable to a civil penalty for conduct that is reasonable in response to an emergency,[18] stating that this would also apply to members of the public. In addition, the minister advised that the civil penalties for unauthorised possession of a radiocommunications device (or operation with a licence),[19] would not apply to individuals working for an organisation which holds a licence under the Act. These provisions would appear to limit the potential application of these civil penalties, including by protecting persons volunteering with community organisations, as well as members of the public acting in an emergency, from the imposition of a civil penalty.
2.239 The minister also advised that, in addition to the civil penalties (and offence provisions), additional less serious enforcement tools are available under the Act. The minister stated that the Act contains a graduated set of enforcement tools including infringement and forfeiture notices, both of which extinguish future liability. The minister advised that these additional tools are designed to assist ACMA to deal proportionately with lower level non-compliance with the Act, such as inadvertent contraventions by individuals. The minister stated that, in the case of any non-compliance by individuals, it is expected that alternative enforcement options will generally be more appropriate. This flexibility would assist in the proportionality of the more significant civil penalties proposed in the bill.
2.240 With respect to the magnitude of the proposed civil penalties, the minister noted the broader regulatory context in which the penalties would operate. The minister advised that many of the civil penalty provisions in Schedules 4 and 6 to the bill would apply to either licensees or businesses dealing with radiocommunications equipment, and that this class of persons can reasonably be expected to be aware of their obligations under the legislation. The minister stated that the civil penalties are designed to be commensurate with the potential harm caused in the form of disruption to radiocommunications and risks to health and safety from
non-compliant radio emissions. Furthermore, with respect to the 1000 penalty unit ($222,000) for non-compliance with a permanent equipment ban,[20] the minister noted that several steps would precede the imposition of such a penalty, which would place relevant persons on notice as to any permanent ban on equipment.
2.241 Based on the information provided by the minister with respect to the series of enforcement tools within the Act, of which the significant civil penalty provisions would be the more serious element; the flexibility to exempt members of the public and persons volunteering with community organisations from the application of a penalty; and the consequent restriction of these penalties to a regulatory context, it would appear that these civil penalties may be described as being civil for the purposes of international human rights law. This would have the effect that the penalties would not engage criminal process rights under human rights law.
2.242 The committee thanks the minister for this response. The committee notes that the bill would confer on the Australian Communications and Media Authority the power to make rules prescribing standards of radiocommunications equipment, and imposing obligations and prohibitions on equipment, including by establishing penalties for non-compliance.
2.243 The committee notes the minister's detailed advice that the civil penalty provisions in the bill operate in a regulatory context, as part of a graduated set of enforcement tools, and are designed to be commensurate with the potential harm caused in the form of disruption to radiocommunications and risks to health and safety from non-compliant radio emissions. The committee also notes the minister's advice that there are existing legislative provisions which protect persons working with emergency organisations, and a further more general proposed exemption from liability for persons acting in an emergency. The committee considers that these are significant safeguards which assist in the proportionality of the civil penalty provisions, and their constrained application within this regulatory context.
2.244 The committee considers that, based on the information provided by the minister, it would appear that these civil penalties may rightly be regarded as being civil for the purposes of international human rights law, meaning that they do not engage criminal process rights.
2.245 The committee recommends that consideration be given to updating the statement of compatibility to include this additional useful information which has been provided by the minister.
2.246 The committee makes no further comment, and has concluded its consideration of the bill.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, Report 13 of 2020; [2020] AUPJCHR 161.
[2] Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (24 September 2020), pp. 69-73.
[3] 'Equipment' would be defined to mean a radiocommunications transmitter or receiver; anything intended or designed for, or otherwise capable of, radio emission; or anything that has a use or function that is capable of being interfered with by radio emission. See, Schedule 4, Part 1, item 6, proposed section 5.
[4] Schedule 4, Part 1, Division 2.
[5] Schedule 4, Part 1, Division 2, proposed sections 156-164.
[6] Schedule 4, Part 1, item 24, proposed section 160. Civil penalties of 30-500 penalty units.
[7] Schedule 4, Part 1, item 24, proposed section 170 (200 civil penalty units) and section 176 (1000 civil penalty units).
[8] Schedule 4, Part 1, item 24, proposed section 186. Civil penalty of 1000 penalty units.
[9] Schedule 6, Part 1, item 9, proposed subsection 46(3). Civil penalties of 20-300 penalty units.
[10] Schedule 6, Part 1, item 11, proposed subsection 47(3). Civil penalties of 20-300 penalty units.
[11] Schedule 6, Part 1, item 14, proposed section 113. Civil penalty of 100 penalty units.
[12] Schedule 6, Part 1, item 25, proposed section 195. Civil penalty of 300 penalty units.
[13] Schedule 6, Part 1, item 28, proposed section 197. Civil penalty of 500 penalty units.
[14] International Covenant on Economic, Social and Cultural Rights, article 12. See also, statement of compatibility, pp. 11-12.
[15] The value of a penalty unit, currently $222, is set out in the Crimes Act 1914, subsection 4AA(1).
[16] International Covenant on Civil and Political Rights, articles 14-15.
[17] The minister's response to the committee's inquiries was received on 8 October 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.
[18] Schedule 6, Part 1, item 31, proposed subsection 269(6).
[19] Schedule 6, Part 1, items 9–11, proposed sections 46–47.
[20] Schedule 4, Part 1, item 24, proposed section 176 (1000 civil penalty units).
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