Human Rights Legislation Amendment Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 148 (10 May 2017)

• Human Rights Legislation Amendment Bill 2017
• Parliamentary scrutiny‑—removing requirements to table certain documents 37
• Strict liability offence41

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Human Rights Legislation Amendment Bill 2017

Purpose	This bill seeks to amend various Acts relating to human rights to: • reform section 18C of the Racial Discrimination Act 1975; • amend the complaints handling processes of the Australian Human Rights Commission; and • make minor amendments to the Australian Human Rights Commission Act 1986
Portfolio	Attorney-General
Introduced	Senate on 22 March 2017
Bill status	Received Royal Assent on 12 April 2017
Scrutiny principles	Standing Order 24(1)(a)(i) and (v)

2.102 The committee dealt with this bill in Scrutiny Digest No. 4 of 2017. The Attorney-General responded to the committee's comments in a letter received on 24 April 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Attorney-General's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Parliamentary scrutiny‑—removing requirements to table certain documents ^[37]

2.103 This bill seeks to amend the mandatory obligations of the Australian Human Rights Commission (Commission) and commissioners under the Australian Human Rights Commission Act 1986 (AHRC Act) to report certain matters to the Minister.^[38] In particular, it is proposed to enable the Commission to report, on a discretionary basis, to the Minister in relation to an inquiry it has undertaken into an act or practice inconsistent with or contrary to human rights or any act or practice that may constitute discrimination.^[39] Item 17 provides that any report provided to the Minister on this new discretionary basis is not required to be tabled in Parliament.

2.104 The committee notes that removing the requirement for certain reports to be tabled in Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are either not made public or only published online. As such, the committee expects there to be appropriate justification for removing a tabling requirement.

2.105 The explanatory memorandum explains the basis for this proposed amendment:

It is intended that the President will publish any reports provided to the Minister as he or she sees fit. This amendment is not intended to reduce public scrutiny of Commission reports. Rather, it is intended to reduce the administrative and resource cost of producing reports for tabling for the Commission.^[40]

2.106 The committee generally does not consider the costs involved in tabling the documents to be a sufficient basis for removing the requirement to table in Parliament.

2.107 The committee seeks the Attorney-General's detailed justification as to why it is considered appropriate to remove the requirement to table reports provided to the Minister from the Australian Human Rights Commission and if a report is not tabled whether it will otherwise be made publicly available.

Attorney-General's response

2.108 The Attorney-General advised:

As noted by the Committee, Item 17 of Schedule 2 of the Bill provides that discretionary reports furnished by the Commission to the Minister in relation to human rights and equal opportunity in employment inquiries are not required to be tabled. This amendment was requested by the President of the Commission, Professor Gillian Triggs.
Under the Act as it currently stands, the Commission is required to provide a report to the Minister in situations where the Commission found that an act or practice constitutes a breach of human rights, or constituted discrimination in employment, and attempting to settle the matter was not appropriate or was unsuccessful. This results in a situation whereby reports which did not raise significant issues were required to be tabled in Parliament.
This amendment maintains the requirement for major and systemic reports produced by the Commission to be tabled in Parliament, such as reports about actions that must be taken by Australia to comply with its international obligations, or reports which examine the consistency of Australian laws with human rights.
Discretionary reports which relate solely to individual circumstances, and not broader issues, are not required to be tabled. Discretionary reports provided to the Minister in relation to human rights or equal opportunity in employment inquiries will be made publically available. As noted in the Explanatory Memorandum, as is current practice, reports will be published on the Commission's website and hard copies will be available. The Commission's website is public-facing and accessible, with the Commission reporting over 4.7 million website views in 2015-16.

Committee comment

2.109 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the amendment maintains the requirement for major and systemic reports produced by the Commission to be tabled in Parliament but that discretionary reports which relate solely to individual circumstances, and not broader issues, are not required to be tabled. The committee also notes that these reports will continue to be made available online.

2.110 The committee thanks the Attorney-General for providing this further information and notes that it would have been useful had this information been included in the explanatory memorandum. In light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Strict liability offence^[41]

Initial scrutiny – extract

2.111 Proposed section 46PJ provides that the President of the Australian Human Rights Commission may require a person, by written notice, to attend a conciliation conference. Subsection (5) provides a person commits an offence if they have been given written notice requiring attendance and the person refuses or fails to comply with the requirement. Subsection (6) makes this an offence of strict liability. The offence is subject to 10 penalty units.

2.112 In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply. The committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[42]

2.113 The statement of compatibility sets out the reason for the imposition of strict liability:

The application of strict liability is necessary to ensure that, when the Commission exercises its compulsory powers to conciliate a complaint, a person may not frustrate that compulsory conciliation... It is reasonable not to require the prosecution to prove a fault element in circumstances where the individual had been given reasonable notice to attend a conference and did not attend, particularly in circumstances where Item 29 of the Bill requires the Commonwealth to pay a reasonable sum for the individual's expenses of attendance. Strict liability is therefore only used where the individual is clearly aware of his or her duties and obligations. This offence is proportionate as it only applies to individuals who have received notice that they are required to attend a conference, and do not, in fact, attend. It would not apply in circumstances where a person had a reasonable and mistaken understanding of circumstances (for example, where a person did not receive the notice of the requirement to attend).^[43]

2.114 Additionally, the explanatory memorandum says that the general defences under the Criminal Code Act 1995 (Criminal Code) would apply to such an offence:

For example, if a person who is given notice to attend a compulsory conference in person cannot attend the conference because an earthquake occurs in Sydney at the time of the conference, that person could rely upon the defence of sudden or extraordinary emergency under Division 10 of the Criminal Code.^[44]

2.115 The committee notes that the general defences under the Criminal Code are extremely limited. Division 10 of Part 2.1 of the Criminal Code relevantly provides that a person will not be criminally liable for an offence that has a physical element to which strict liability applies if the person had no control over the events or there is a sudden or extraordinary emergency.

2.116 The committee notes the existing strict liability offence in the AHRC Act makes it of an offence to fail to attend as required by the direction or to fail to continue to attend 'unless excused, or released from further attendance, by the person presiding at the conference'. There is also a defence if the person had a reasonable excuse for not attending. These qualifications are no longer included in the proposed new offence provision. As such, there are very limited circumstances (such as an earthquake) which would be accepted for a failure to attend and otherwise strict liability attaches, with no requirement to prove fault.

2.117 The committee requests a detailed justification from the Attorney-General for the strict liability offence in proposed section 46PJ(6), including:

• why the proposed provision removes the existing defence of reasonable excuse;

• why the proposed provision removes the existing ability of the President to excuse or release a person from further attendance;

• why having an offence subject to 10 penalty units for failure to attend the conference is not sufficient deterrence in itself and why the imposition of strict liability (and the punishment of a person lacking 'fault') is therefore necessary.

Attorney-General's response

2.118 The Attorney-General advised:

Item 49 of Schedule 2 of the Bill applies the current provisions in sections 46PJ and 46PK in the Act, which regulate the exercise of compulsory conciliation conferences by the Commission, to both voluntary and compulsory conciliation conferences. This amendment was requested by the President of the Commission, Professor Gillian Triggs. New subsections 46PJ(5) and (6) provide for a strict liability offence for failure to comply with a notice from the Commission requiring attendance at a compulsory conciliation conference.
It is my view that the strict liability offence in proposed section 46PJ is appropriate and consistent with the Guide to Framing Commonwealth Offences (the Guide).
As noted by the Committee, this amendment does not create a new offence but transfers the current strict liability offence from section 46PL of the Act into the new section 46PJ. There are legitimate grounds for penalising persons lacking fault in these circumstances. The Commission rarely conducts compulsory conciliation conferences, and would do so only in the most serious of cases, after a failure of voluntary conciliation. An individual must be provided with a written notice outlining their obligations to appear and that individual is entitled to a reasonable sum for the expenses of attendance. In these circumstances, an individual is placed on notice to guard against the possibility of any contravention, and is supported by the Commonwealth to comply with the requirement to attend the conference.
As noted in the Guide, strict liability is only appropriate where the offence is punishable by a fine of up to 60 penalty units. The offence under subsection 46PJ(5) carries the relatively low penalty of 10 penalty units.
The amendments to the current strict liability offence under section 46PL of the Act, as noted by the Committee, bring the offence into line with the Guide by removing the defence of no reasonable excuse. As stated at paragraph 4.3.3 of the Guide, the defence of 'reasonable excuse' should be generally avoided. This is because the defence is too open-ended, and the conduct intended to be covered may also be covered by the defences of general application in the Criminal Code Act 1995 (the Criminal Code).
Although in the opinion of the Committee, the general defences under the Criminal Code may be limited, the scope of these defences is appropriate in this context. The general Criminal Code defences would exempt an individual from liability for the majority of situations in which they did not comply with a notice to attend, but had intended to do so. For example, if the person did not attend because they had not received the notice or external circumstances had prevented the individual from attending.
The ability of the President (or other person presiding) to excuse or release a person from further attendance at a compulsory conference only applied to a failure to attend and report from day to day under former paragraph 46PL(1)(b) of the Act. The excuse provision did not apply in relation to former paragraph 46PL(1)(a) of the Act. As the offence in Item 49 does not include a 'report from day to day' aspect, there is no requirement for an excuse provision.

Committee comment

2.119 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that there are legitimate grounds for penalising persons lacking fault in circumstances where the Commission conducts compulsory conciliation conferences. The committee notes the advice that the offence carries a relatively low penalty, the individual is placed on notice to guard against the possibility of any contravention, and the amendment brings the offence in line with the Guide to Framing Commonwealth Offences.^[45]

2.120 The committee thanks the Attorney-General for providing this further information and notes that it would have been useful had this information been included in the explanatory memorandum. In light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

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[37] Schedule 2, item 17.

[38] See Schedule 2, items 6, 11, 12, 16, 19, 20 and 24 and Schedule 3, item 1.

[39] Schedule 2, items 6, 11, 12 and 16.

[40] Explanatory memorandum, p. 27.

[41] Schedule 2, item 49, proposed subsection 46PJ(6) of the Australian Human Rights Commission Act 1986.

[42] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[43] Statement of compatibility, p. 17.

[44] Explanatory memorandum, p. 36.

[45] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011.