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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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The bill seeks to strengthen Australia’s legislative framework for
the screening, and inspection, of incoming international
mail at the
border.
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Portfolio
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Infrastructure, Transport, Regional Development, Communications and the
Arts
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Introduced
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House of Representatives on 27 March 2024
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Bill status
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Before the Senate
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2.2 Item 50 of Schedule 1 to the bill seeks to substitute existing section 90N of the Australian Postal Corporation Act 1989 (the Act). Proposed subsection 90N(1) creates an offence of two years imprisonment if a person opens an article or examines the article or its contents.
2.3 Proposed subsection 90N(2) provides that the offence in proposed subsection 90N(1) does not apply if the opening or examination of the article or its contents is permitted by the Act, or another Commonwealth or State or Territory law.
2.4 Proposed subsection 90N(3) provides that the offence in proposed subsection 90N(1) does not apply if the opening or examination of the article or its contents is in the course of the person exercising powers, or performing functions or duties, as:
• an AFP appointee (proposed paragraph 90N(3)(a));
• a member of a State or Territory police force (proposed paragraph 90N(3)(b)); or
• as a person included in a class of persons determined by legislative instrument (proposed paragraph 90N(3)(c)).
2.5 A note to each of these proposed subsections confirms that the evidential burden of proof is reversed in relation to these offence-specific defences.
2.6 In addition, proposed paragraph 90N(3)(c) provides that the minister can declare further classes of persons who are not subject to the offence in proposed subsection 90N(1) by legislative instrument.
2.7 In Scrutiny Digest 6 of 2024 the committee requested the minister’s detailed advice as to:
• why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in proposed subsections 90N(2) and (3), noting that the committee’s consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences;
• why it is necessary and appropriate to provide for the classes of persons who may lawfully open and examine articles to be expanded by delegated rather than primary legislation;
• whether examples can be provided of the classes of persons who may be determined by the minister under subsection 90N(4) to not be subject to the subsection 90N(1) offence, including whether consideration could be given to restricting the classes of persons that could be so determined, for instance to those that hold relevant qualifications, training and experience; and
• the types of privacy protections or considerations that will be relevant when mail articles are opened and examined under proposed subsections 90N(2) and (3), including the ‘strict parameters’ that will be imposed.[162]
2.8 In relation to the offence-specific defences, the Minister for Communications (the minister) advised that offence-specific defences have been used in this context in the Act for approximately 30 years, and that policy intent had not changed.
2.9 The minister further stated that offence-specific defences are planned to be retained in the relevant subsections, providing the following justification:
A person conducting the opening or examining of a postal article or its contents would be doing so in an official capacity performing their functions and duties as part of their employment. Accordingly, the person and their employer are expected to know under what legal basis they are permitted to carry out such conduct, in advance of carrying out the conduct. This would be informed by guidance materials, internal operating procedures, and relevant training made available by the person’s employer. In some instances, a person opening or examining articles may also be required to keep records of their decision-making in exercising legislative powers, and performing of duties or functions that led to carrying out the conduct, and which would clearly demonstrate decision-making in this regard.
2.10 The minister advised that the replacement explanatory memorandum does not expressly state the reason for placing the burden of proof on the defendant and undertook to prepare an addendum addressing these matters.
2.11 On the matter of expanding classes of persons in delegated rather than primary legislation, the minister advised that the intention of proposed paragraph 90N(3)(c) is to enable government agencies and Australia Post to adapt and respond quickly to emerging risks. The minister advised that providing for the persons who may lawfully open mail articles in delegated legislation will provide ‘flexibility and agility’ to ensure the robustness of the postal system.
2.12 In addition, the minister stated that the development of any legislative instruments would consider the issue of privacy closely, including a privacy impact threshold assessment and a privacy impact assessment, if warranted, consistent with the Australian Privacy Principles requirements. Noting this information was not addressed in the explanatory memorandum, the minister undertook to prepare an addendum to address the committee’s concerns regarding delegated legislation for classes of people who may lawfully open and examine articles.
2.13 On the matter of examples of the classes of persons who may be determined by the minister for exemption to the subsection 90N(1) offence, the minister assured the committee that ‘any additional classes of persons which would be determined in the future by the Minister would be persons with relevant qualifications and experience necessary to perform their official role.’
2.14 Further, the minister added that, if the bill passes, the department will develop regulatory guidelines in consultation with relevant bodies, such Australia Post. These guidelines would deal with applicable parameters to the classes of persons determined by the minister, including relevant skills, experience and training. Additionally, the guidelines would also address privacy protections.
2.15 The minister advised that,
[t]here are no known examples of persons or classes of persons that may need to be determined in a legislative instrument by the Minister at this time. As outlined above, the intent is to allow Australia Post and border agencies to adapt and respond quickly in response to risks that emerge or evolve in the postal systems.
2.16 The minister undertook to prepare an addendum to the replacement explanatory memorandum containing the relevant information.
2.17 Finally, the minister responded to the committee’s concerns surrounding privacy by noting that the Australian Federal Police is subject to the Privacy Act 1988 and that state and territory privacy legislation may also apply in situations where mail was opened under a state or territory law, or by a police force or service of a state or territory.
2.18 The minister advised ‘[t]here would necessarily be privacy safeguards built into operational systems and processes’ so as to not allow the exceptions proposed in section 90N to be exceeded. Further, the minister noted that the exceptions to the offences in proposed subsections 90N(2) and (3) are designed with regard to human rights conventions and the Australian Privacy Principles to ensure privacy protections are taken into account while also ensuring public interest and safety.
2.19 The minister advised that this strikes an appropriate balance to protect the right to privacy against the public interest in preventing threats to security and unlawful conduct. The minister proceeded to list various section of the Act which detail limits on the physical examination of mail articles.[164]
2.20 Regarding the offence-specific defences, the committee notes the advice provided by the minister but does not consider that the matters set out in proposed subsection 90N(3) are peculiarly within the knowledge of the defendant. The committee notes that the minister’s response indicated that the matters would be of knowledge to both a defendant and their employer, and that records may also be kept in some circumstances. It therefore appears to the committee that an employer would also be able to provide evidence of the relevant matters relatively easily and that the matters therefore are not peculiarly within the knowledge of the defendant, nor does it appear particularly costly for the prosecution to obtain the relevant evidence.
2.21 In relation to the expansion of classes of persons who can lawfully open mail items under proposed paragraph 980N(3)(c), the committee thanks the minister for the further information as to why these powers are necessary and appropriate. The committee notes the advice that the persons to be declared in a legislative instrument would possess relevant qualifications and experience necessary to undertake this duty, and that regulatory guidance will be implemented to set out these requirements. While the committee’s preferred position is for such a safeguard to be set out in primary law, the committee nevertheless welcomes this additional information and considers it would be a useful inclusion for the bill’s explanatory memorandum. The committee notes the minister’s undertaking to provide an addendum to the explanatory memorandum in relation to these matters and their privacy implications.
2.22 In relation to privacy, the committee welcomes the further information provided by the minister and notes this information would be useful if included in the explanatory memorandum to the bill.
2.23 Noting the minister’s advice that an addendum to the explanatory memorandum will be prepared containing key information in the minister’s response, the committee makes no further comment in relation to proposed paragraph 90N(3)(c). The committee also requests that the addendum to the explanatory memorandum contain key information set out in the minister’s response in relation to privacy safeguards for these measures.
2.24 The committee draws its scrutiny concerns in relation to the reversed evidential burdens of proof in proposed subsection 90N(2) to the attention of senators and leaves to the Senate as a whole for consideration the appropriateness of these measures.
2.25 The committee draws proposed paragraph 90N(3)(c) to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
[160] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Australian Postal Corporation and Other Legislation Amendment Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 120.
[161] Schedule 1, item 50, proposed subsections 90N(2) and (3). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (iv).
[162] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2024 (15 May 2024) pp. 2–5.
[163] The minister responded to the committee’s comments in a letter dated 5 June 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).
[164] Section 90P, section 90Q, section 90R, proposed section 90S, section 90U, and section 90UB.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/120.html