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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.71 On 6 February 2025, the House of Representatives agreed to 20 Government and four Opposition amendments, and the bill passed, as amended, both Houses of Parliament on the same day.
1.72 One Government amendment and one Opposition amendment introduced mandatory minimum terms of imprisonment for a number of offences.[60] The relevant offences and terms of mandatory imprisonment are:
• public display of prohibited Nazi symbol or giving Nazi salute[61] – 12 months;
• public display of prohibited terrorist organisation symbols[62] – 12 months;
• commission of specified terrorist acts[63] – 6 years;
• associating with a terrorist organisation[64] – 12 months;
• financing terrorism or a terrorist[65] – 3 years; and
• advocating force or violence through causing damage to property[66] – 12 months.[67]
1.73 The committee notes that mandatory minimum terms of imprisonment remove judicial discretion and may result in the imposition of sentences of imprisonment that are disproportionate to the offence in the circumstances. Typically, the Parliament determines, based on the severity of the conduct to be criminalised, the maximum penalty that may be imposed following conviction. This gives courts the discretion to impose a sentence up to, and including, the maximum penalty based on a range of factors. It enables the court to consider matters such as the impact of the offence on the victim and the circumstances of the offending and the accused. In sentencing an offender, the court must consider whether a particular case meets the threshold for imposing a term of incarceration, taking into account and balancing the purposes and principles of sentencing.
1.74 Mandatory minimum sentences constrain the exercise of judicial discretion and deprive a court of the ability to adequately consider the culpability of a particular defendant. At common law, it is understood that the purpose of a criminal sentence is that it reflects the objective seriousness of the offence committed and that there must be a reasonable proportionality to the circumstances of the offending.[68] As mandatory sentences fail to account for individual circumstances, this could lead to detention that is disproportionate and arbitrary.
1.75 It has been the committee’s long standing and consistent approach to draw scrutiny concerns regarding mandatory sentencing to the attention of the Senate. See, for example, the committee’s comments in relation to the Border Protection (Validation and Enforcement Powers) Bill 2001; Anti-People Smuggling and Other Measures Bill 2010; Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014; Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; Criminal Code Amendment (Firearms Trafficking) Bill 2022; and Migration Amendment (Bridging Visa Conditions) Bill 2023 and Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023.[69]
1.76 From a scrutiny perspective, the committee also notes with concern the speed at which the bill and its amendments were considered by the Senate. The bill, as amended, was introduced into the Senate on 6 February 2025, and agreed to by the Senate under a limitation of debate the same day, which allowed only one hour for the second reading of the bill and around 15 minutes to discuss committee-of-the-whole amendments.
1.77 The committee considers that such a rapid process limits parliamentary scrutiny and debate, and that this may have limited an appropriate consideration of all matters within the amendments, particularly in relation to serious impacts on personal rights and liberties.
1.78 As previously stated, the committee considers mandatory minimum sentences unduly trespass on personal rights and liberties as they remove judicial discretion and may result in the imposition of sentences of imprisonment that are disproportionate to the offence in the circumstances.
1.79 The committee reiterates its consistent scrutiny view that legislation, particularly legislation that may unduly trespass on personal rights and liberties, should be subject to a high level of parliamentary scrutiny.
1.80 However, in light of the fact that this bill, as amended, has passed both Houses of Parliament, the committee makes no further comment.
1.81 The Government and Opposition amendments also made a number of significant changes to existing offences and introduced additional offences to the Criminal Code, including:
• amendments to sections 80.2A and 80.2B so that it is an offence to ‘advocate’ the use of force or violence against particular groups, members of groups or their close associates, instead of needing to ‘intentionally urge’ the use of force or violence. Advocate is defined to mean ‘counsel, promote, encourage or urge’;[71]
• introducing new sections 80.2BC and 80.2BD, making it an offence to advocate or threaten the causing of damage or destruction to real property or motor vehicles, because it is a place of worship or owned or occupied by groups with particular attributes;[72]
• introducing new section 80.2BE, making it an offence to advocate the use of force or violence against a group, distinguished by race, religion or ethnic origin, by causing damage to property. Damage is defined to include minor damage and would capture an offensive slogan painted on a building. This offence is subject to imprisonment for between 5–7 years and a mandatory minimum period of 12 months;[73] and
• amending existing sections 80.2H and 80.2HA to add to the prohibition of display of Nazi salutes or symbols and terrorist organisation symbols to also prohibit these if it would offend, insult or humiliate or intimidate a person distinguished by disability, and to increase the penalty from 12 months imprisonment to up to five years imprisonment.[74]
1.82 The committee notes that when it considered the bill as originally introduced, it had scrutiny concerns regarding the removal of an existing defence.[75] The committee had noted that by removing this defence, an existing safeguard was removed that aimed to ensure the offences are not overly broad, noting the potential impact of these offences on freedom of expression. The committee had noted that previous drafting of the offences meant it was unlikely there were many circumstances where a person could urge or threaten the use of force or violence against a particular group in ways that would be considered legitimate. However, the committee noted it is not possible for the committee, or the Parliament, to understand the full range of possibilities that could be captured by these provisions. The committee was concerned that completely removing existing defence provisions may result in unintended consequences, particularly in circumstances where the threshold for intending that the force or violence will occur has been lowered to recklessness. For example, under the bill, it would appear that if a person posts a message saying they intend to forcibly stop neo-Nazis (who would arguably have the protected attribute of a ‘political opinion’) from disrupting a planned multicultural event, this might be considered a threat to use force against a targeted group, subject to up to five years imprisonment.
1.83 The committee’s concerns in this regard are heightened by these amendments, which broaden the scope of the offence to ‘advocating’ the use of force, which includes encouraging or promoting. This is a lower threshold than urging the use of force, and the committee notes there is now no defence for acts done for a genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest or in the dissemination of news or current affairs.[76] The committee is concerned that the amendments, applying also to damage to property (rather than only urging or threatening violence against individuals) also broaden the offence. This also raises issues regarding freedom of expression. The committee is particularly concerned by the new offence in section 80.2BE, the effect of which is that a person could be subject to up to five years imprisonment, and a minimum of one year’s imprisonment, for certain forms of graffiti. The committee considers it has not been established that this significant penalty is appropriate in all the circumstances and is of comparable severity to other like offences.[77]
1.84 The committee also notes that it had concerns with the breadth of the scope of the offences involving displays of Nazi or terrorist symbols, and the potential impact on the right to freedom of expression.[78] The committee notes that the substantial increase in the maximum term of imprisonment (to five years) and the introduction of the mandatory minimum term of 12 months imprisonment, heighten these concerns.
1.85 The committee considers the expansion of the scope of these offences and the increase in the penalties of imprisonment, taken together with the removal of existing defences and a lowering of the fault element from intention to recklessness, unduly trespasses on personal rights and liberties.
1.86 However, in light of the fact that this bill, as amended, has passed both Houses of Parliament, the committee makes no further comment.
1.87 On 5 February 2025, the House of Representatives agreed to two Government amendments.
1.88 Section 106ZPQ of the Health Insurance Act 1973 (the Health Insurance Act) currently abrogates the privilege against self-incrimination by providing that persons are not entitled to refuse to produce documents on the grounds that production of documents might tend to incriminate them. A person may be required under that Act to produce such information or documents as part of a review into the provision of services involving a Medicare or dental benefit. However, use and derivative use immunity is applicable in relation to documents and information obtained except for proceedings for an offence of providing false or misleading documents. A use immunity provides that information or documents produced are not admissible in evidence in most proceedings. By contrast, a derivative use immunity provides that anything obtained as a direct, or indirect, consequence of the information or documents is not admissible in most proceedings.
1.89 Item 19 of amendment (2) seeks to amend this provision to limit when the existing use and derivative use immunities are applicable. This would mean that any information, document or other material obtained under this provision is applicable in the following proceedings:
• for offences for failing to produce documents or give information or for producing false or misleading documents;
• before a Committee or the Determining Authority;
• to recover an amount that is recoverable as a debt to the Commonwealth or otherwise required to be repaid to the Commonwealth; and
• any other proceedings in relation to compliance with a requirement under Part VAA of the Health Insurance Act.[80]
1.90 In addition, item 20 of amendment (2) seeks to provide circumstances when information and certain derivative materials are admissible as evidence in these proceedings. These circumstances include where information, documents or other material is obtained by an appropriate person or body (who are prescribed by the regulations) under sections 106XA or 106XB of the Health Insurance Act for proceedings that are for the purposes of the National Law.[81] Derivative materials may also be admissible in proceedings even if they are not obtained by compulsion under the relevant sections of the Health Insurance Act but were the result of the production of documents under those sections and are obtained by an appropriate person or body.[82]
1.91 The committee notes that the exceptions to when use and derivative use immunity is not applicable is being expanded to include proceedings to recover a debt to the Commonwealth and any other proceedings in relation to compliance with a requirement under Part VAA of the Health Insurance Act. This would provide that use and derivative use immunity could potentially not be applicable in a wide range of proceedings under this scheme, potentially even criminal proceedings. In relation to this, the supplementary explanatory memorandum provides:
The amendments will ensure that information and documents produced under subsection 89B(2) or 105A(2) of the Health Insurance Act could be used in certain proceedings related to the Professional Services Review process. This presents a limited exception to the use immunity that otherwise applies to the compulsorily acquired material. Noting that material obtained under subsection 89B(2) or 105A(2) will have been sought for the purposes of a Director’s review or a Committee’s inquiry, it is appropriate for the material to also be admissible in proceedings that support, or are related to that process, including the recovery of amounts due as debts or required to be repaid.[83]
1.92 It is not clear to the committee if this exception is limited in nature as it is applicable to any proceeding for the purpose of compliance with a requirement under a certain Part of the Act. Further, the committee notes that this explanation is only applicable to civil proceedings and fails to address instances where information or documents are admissible in criminal proceedings commenced in relation with a failure to comply with the Health Insurance Act. The committee’s concerns are focused on when persons may be forced to incriminate themselves – in such circumstances the committee expects that safeguards, such as a use or derivative use immunity, should apply. It is also unclear from this justification why the amendments are necessary and more concerningly, why such a broad exception to the application of use and derivative use immunity is required.
1.93 The committee’s concerns are heightened in this instance as material which is referred to regulatory bodies or other appropriate persons under sections 106XA and 106XB of the Health Insurance Act can also be used in proceeding against those individuals as a result of investigations commenced by said bodies. The committee understands that these investigations would have been commenced on the basis of compulsorily provided information that should be, and previously would have been, subject to use and derivative use immunity. In relation to this matter, the supplementary explanatory memorandum states:
Under the current subsection 106ZPQ(2), there are broad restrictions against the use of material acquired under subsection 89B(2) or 105A(2) of the Health Insurance Act in civil and criminal proceedings. The current restrictions may prevent Ahpra or another regulatory body from taking appropriate regulatory or compliance action in relation to the referred material. In turn, this may have the result that potential threats to life or health, or non-compliance with professional standards remain unaddressed and patient safety is compromised.
[...]
These amendments would ensure that the requirements to refer information under sections 106XA and 106XB are not ultimately frustrated by restrictions on the use of referred information. Such exceptions to the use and derivative use immunities are appropriate in circumstances where the legislation intends that this information would be used by appropriate regulatory bodies to take action to address significant threats to life or health and non-compliance with professional standards.[84]
1.94 While the committee acknowledges the necessity of being able to address significant threats to life or health and non-compliance with professional standards, it is still unclear whether such threats could be addressed by taking immediate regulatory action (outside the criminal law context).
1.95 The committee reiterates that the privilege against self-incrimination is a fundamental right under the common law and any abrogation of that right represents a significant loss to personal liberty and the presumption of innocence. The committee notes in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 Murphy J noted that the privilege is:
part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality.[85]
1.96 The committee therefore requests the minister’s advice as to:
• why it is necessary and appropriate that the exceptions to when use and derivative use immunity apply be expanded to include any proceedings in relation to compliance with a requirement under Part VAA of the Health Insurance Act 1973 (noting this can include criminal proceedings);
• why it is necessary and appropriate derivative use immunity not apply to documents that are obtained by regulatory bodies or other appropriate persons under sections 106XA and 106XB of the Health Insurance Act 1973, allowing these documents or information to be admissible as evidence in certain proceedings; and
• whether the Criminal Justice Division of the Attorney-General’s Department has been consulted in relation to this matter.
1.97 The committee’s consideration of this information would be assisted if the response made reference to the principles in the Attorney-General's Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
[58] This report can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments, Scrutiny Digest 2 of 2025; [2025] AUSStaCSBSD 25.
[59] Government amendment (1) [sheet AA101] and Opposition amendment (1) [Sheet 3]. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (v).
[60] Government amendment (1) [sheet AA101] and Opposition amendment (1) [Sheet 3].
[61] Criminal Code, section 80.2H.
[62] Criminal Code, section 80.2HA.
[63] Criminal Code: engaging in a terrorist act (section 101.1); providing or receiving training connected with terrorist acts (section 101.2); possessing things connected with terrorist acts (section 101.4); collecting or making documents likely to facilitate terrorist acts (section 101.5); other acts done in preparation for, or planning, terrorist acts (section 101.6); directing the activities of a terrorist organisation (section 102.2); membership of a terrorist organisation (section 102.3); recruiting for a terrorist organisation (section 102.4); training involving a terrorist organisation (section 102.5); getting funds to, from or for a terrorist organisation (section 102.6); providing support to a terrorist organisation (section 102.7).
[64] Criminal Code, section 102.8.
[65] Criminal Code, sections 103.1 and 103.2.
[66] Criminal Code, section 80.2BE.
[67] See amendments to section 16AAA of the Crimes Act 1914, table A1A–1F.
[68] Veen v The Queen (No 2) (1988) 164 CLR 465 at p. 477.
[69] Senate Standing Committee for the Scrutiny of Bills, Alert Digest 13 of 2001 (20 September 2001), p 8; Alert Digest 3 of 2010 (10 March 2010), p. 2; Alert Digest 10 of 2014 (27 August 2014) p. 10; Alert Digest 4 of 2015 (25 March 2015) p. 11; Scrutiny Digest 13 of 2017 (15 November 2017), pp. 76-79; Scrutiny Digest 6 of 2019 (18 September 2019), pp. 3-4; Scrutiny Digest 2 of 2022 (18 March 2022) p. 33; and Scrutiny Digest 15 of 2023 (29 November 2023), p. 14.
[70] Government amendments [sheet EZ100] and [sheet AA101] and Opposition amendments [Sheet 3]. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[71] Government amendments (1)–(11) [sheet EZ100].
[72] Government amendment (16) [sheet EZ100].
[73] Opposition amendments (1)–(2) [sheet 3]
[74] Government amendment (17) [sheet EZ100] and (5) and (6) [sheet AA101].
[75] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 12 of 2024 (18 September 2024) pp. 11–15 and Scrutiny Digest 14 of 2024 (20 November 2024) pp. 109–113.
[76] See Criminal Code Act 1995, section 80.3 (as it existed prior to the amendments made by this bill).
[77] In this regard, the committee notes that it is not clear if a constitutional head of power would support the breadth of such an offence, noting it appears to rely on the external affairs power. However, it is not clear if such an offence is supported by the International Covenant on Civil and Political Rights or the International Convention on the Elimination of All Forms of Racial Discrimination.
[78] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 1–19; Scrutiny Digest 13 of 2023 (8 November 2023) pp. 57–73; and Scrutiny Digest 15 of 2023 (29 November 2023) pp. 35–43.
[79] Amendment (2) items 19 and 20, government sheet [FL102]. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[80] Amendment (2), item 19, proposed subsection 106ZPQ(2).
[81] Amendment (2), item 20, proposed subsection 106ZPQ(3).
[82] Amendment (2), item 20, proposed subsection 106ZPQ(4).
[83] Supplementary explanatory memorandum, pp. 15-16.
[84] Supplementary explanatory memorandum, pp. 16-17.
[85] Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 346.
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