Commonwealth Places and Services (Facial Recognition) Bill 2018 [2018] AUSStaCSBSD 217 (19 September 2018)

• Commonwealth Places and Services (Facial Recognition) Bill 2018
• Trespass on personal rights and liberties
• Reversal of evidential burden of proof
• Significant penalties 21

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Commonwealth Places and Services (Facial Recognition) Bill 2018

Purpose	This bill seeks to make it an offence to wear facial coverings in certain public places
Sponsor	Senator Cory Bernardi
Introduced	Senate on 11 September 2018

Trespass on personal rights and liberties
Reversal of evidential burden of proof
Significant penalties ^[21]

1.34 The bill seeks to amend the Criminal Code Act 1995 to include proposed subsections 395.2(1) and (2), which would make it an offence for a person to wear a full face covering in a public place,^[22] and to compel a person under 18 years of age to wear a full face covering in a public place. These offences would apply in a Commonwealth place and in a Territory.^[23] Proposed subsection 395.2(3) provides an exception (offence specific defence) to these offences, stating that the offence does not apply if the wearing of the full face covering is reasonably necessary, in all the circumstances, for the: lawful pursuit of the wearer's occupation; the wearer's participation in lawful entertainment, recreation or sport; a genuine artistic purpose; protection from physical harm; or such other purposes as are prescribed by the regulations. The proposed offences carry a maximum penalty ranging from 1 penalty unit for the first offence to imprisonment for one month or 10 penalty units, or both, for the third offence.

1.35 The bill also seeks to amend the Social Security (Administration) Act 1999 to include proposed subsection 216A(1) and (2), which would make it an offence for a person to wear a full face covering in any building owned or leased by the Commonwealth and engage in conduct in relation to an officer for the purpose of making a claim for a social security payment under the social security law, or to compel another person under 18 years of age to wear a full face covering who then engages in the relevant conduct. Proposed subsection 216A(4) provides an exception to these offences identical to that set out under proposed subsection 395.2(3). These offences are also subject to the same range of penalties as the offence under proposed subsection 395.2(1).

1.36 The bill also seeks to amend the Australian Citizenship Act 2007 to state that a person must not make a pledge of commitment to be an Australian citizen while wearing a full face covering.

1.37 The committee notes that, insofar as the proposed provisions seek to prevent persons from wearing full facial coverings in certain circumstances, it may be considered that the bill might restrict both religious freedom and freedom of expression, and as such, may unduly trespass on personal rights and liberties. The statement of compatibility states that the bill engages freedom of religion but does not justify the limitation and notes that participation in worship services or marriage ceremonies are exempt from the remit of the bill. However, the committee notes that religious freedom would allow for the expression of one's religion beyond the confines of places of worship or marriage ceremonies. The statement of compatibility also notes that the bill engages freedom of political communication and the bill makes clear, in proposed section 395.2(4), that the section does not apply to the extent it would infringe on any constitutional doctrine of implied freedom of political communication. However, the committee notes that the implied freedom of political communication is a much narrower doctrine than the right to freedom of expression.

1.38 As noted above, the bill seeks to impose the possibility of a custodial penalty (imprisonment for one month for a third offence); however, no justification is provided in the explanatory memorandum for why a custodial penalty is proposed in relation to offences that, on their face, appear to be quite minor (namely the wearing of certain clothing). The committee's expectation is that the rationale for the imposition of significant penalties, especially if those penalties involve imprisonment, will be fully outlined in the explanatory memorandum. In particular, penalties should be justified by reference to similar offences in Commonwealth legislation. This not only promotes consistency, but guards against the risk that liberty of the person is unduly limited through the application of disproportionate penalties.

1.39 Finally, with respect to the offence specific defences proposed in the bill, the committee notes that subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.40 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.41 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in proposed subsection 395.2(3) and proposed subsection 216A(4) have not been addressed in the explanatory materials.

1.42 The committee notes that provisions of the bill may unduly trespass on personal rights and liberties. In the event that this bill progresses further through the Parliament, the committee may set out its scrutiny concerns in greater detail in a future Scrutiny Digest.

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[21] The committee draws senators’ attention to this bill pursuant to Senate Standing Order 24(1)(a)(i).

[22] 'Public place' is defined in proposed section 395.2(5), and states it does not include a place of worship or a place where marriage, civil partnership or civil union ceremony is being lawfully held.

[23] Schedule 1, item 1, proposed section 395.1.