Torres Strait Regional Authority Election Rules [F2017L01279]-Response required [2017] AUSStaCSDLM 397 (15 November 2017)

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Instrument	Torres Strait Regional Authority Election Rules [F2017L01279]
Purpose	Sets rules for the conduct of elections for the Torres Strait Regional Authority
Authorising legislation	Aboriginal and Torres Strait Islander Act 2005
Portfolio	Prime Minister and Cabinet
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow currently must be given by 7 December 2017
Scrutiny principle	Standing Order 23(3)(a) and (b)

Drafting

The committee has identified what appear to be drafting errors in three provisions of the instrument. All three relate to incorrect cross-references to other provisions within the instrument, as follows:

• In rule 4, 'liaison officer' is defined as 'an Aboriginal and Torres Strait Islander liaison officer appointed under rule 4'. It appears that this reference should be to rule 12 as it is rule 12, not rule 4, which provides for the appointment of liaison officers.

• Subrule 99(b) refers to 'such scrutineers as have been duly appointed under rule 99...'. It appears that this reference should be to rule 98 as it is rule 98, not rule 99, which provides for the appointment of scrutineers.

• Subrule 101(5) requires a Returning Officer to determine the outcome of an election 'by applying the principles set out in Schedule 2 or 3 to the Act'.

The committee notes that there is no Schedule 3 to the Act, defined by rule 4 as the Aboriginal and Torres Strait Islander Act 2005. It appears that the reference should be to Schedule 2 or 2A to the Act.

In the interests of promoting the clarity and intelligibility of instruments, the committee expects that instruments and their accompanying ESs should be drafted with sufficient care to avoid potential confusion for anticipated users. In this instance, the committee is also concerned that these errors may have the potential to undermine the intended legal effect of the respective provisions. In the case of subrule 101(5), in particular, this would be very significant.

The committee requests the minister's advice in relation to the above drafting errors in the instrument.

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee), which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set in legislation on either the sorts of powers that might be delegated or on the categories of people

to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

Rule 166 of the instrument provides that:

Where under these Rules a power or function is conferred on the Electoral Commissioner, the Electoral Commissioner may by notice in writing delegate that power or function to the Deputy Electoral Commissioner or a member of staff of the Electoral Commission.

The ES provides no information about this provision.

The committee is concerned that the delegation includes no requirement that a delegate who exercises the powers of the Electoral Commissioner be at a certain level in the Australian Public Service, or possess any training or attributes to ensure the appropriate exercise of the powers. The committee's expectation is that delegation provisions include a requirement that the principal delegate be satisfied that a person to whom powers are sub-delegated has the relevant qualifications and attributes to properly exercise the powers.

The committee requests the minister's advice in relation to the broad sub-delegation of the powers delegated to the Electoral Commissioner under the instrument.

The committee notes that the instrument contains two offences with elements of strict liability:

• Paragraph 154(1)(a) creates an offence where a person in a polling booth on polling day engages in conduct that disrupts, or tends to disrupt, the operation of the poll. Subrule 154(2) provides that strict liability applies to whether the conduct disrupts, or tends to disrupt, the operation of the poll; and

• Subrule 155(1) creates an offence where a person has been removed from

a polling booth at the direction of the presiding officer given under subrule 154(3), and re-enters the booth without permission. Subrule 155(2) provides that strict liability applies to whether such a direction was given by the presiding officer under rule 154.

In a criminal law offence the proof of fault is usually a basic requirement. Offences of strict liability remove the fault element that would otherwise apply. This means

a person could be punished for doing something, or failing to do something, whether or not they have a guilty intent. This should only occur in limited circumstances.

Given the potential consequences for individuals of strict liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences, that is consistent with the Attorney-General's Department's Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (the Offences Guide).^[1]

The ES to the instrument provides no discussion of the strict liability offences in the instrument, nor any justification for their imposition. The statement of compatibility for the instrument similarly fails to identify and address the imposition of strict liability as a human rights issue.

The committee draws the minister's attention to the discussion of strict liability offences in the Offences Guide as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

The committee requests the minister's advice in relation to the justification for each of the strict liability offences within the instrument, and requests that the ES be amended to include that information.

Scrutiny principle 23(3)(b) of the committee's terms of reference requires the committee to ensure that an instrument does not unduly trespass on personal rights and liberties. This principle requires the committee to ensure that where instruments reverse the onus of proof for persons in their individual capacities, this infringement on well-established and fundamental rights is justified.

The committee notes that four provisions in the instrument set out a defence to

an offence, but impose on the defendant an evidential burden of proof, requiring the defendant to raise evidence about the defence:

• Subrule 73(3), defence to unlawfully entering a polling booth without permission if the person had permission from the Presiding Officer;

• Rule 135, defence to divulging information about the vote of a voter if done for the purposes of Part 4 (scrutiny of the votes);

• Subrule 139(2), defence to distributing certain electoral advertising material if the material is of specified kinds; and

• Subrule 144(2), defence to leaving voting directions in polling booths if the document is an official instruction displayed by proper authority.

Five further offences also specify defences but impose on the defendant a stronger, legal burden of proof, requiring the defendant to positively prove the defence:

• Subrule 140(3), defence to offences in relation to the publication and distribution of misleading or deceptive material if the person proves that they did not know, or could not be reasonably expected to know, that the thing was likely to mislead a voter;

• Subrule 140(4), defence to offences in relation to publication of false representations of ballot papers if the person proves that they did not know, or could not be reasonably expected to know, that the representation was likely to induce a voter to vote informally;

• Subrules 153(4) and (5), defences to offences in relation to making an official mark on a ballot paper if the person proves that he or she acted with lawful authority; and

• Subrule 156(2), defence to offence of defamation of candidates if the person proves that he or she had reasonable grounds for believing and did in fact believe the statement made to be true.

The ES to the instrument provides no discussion of the reversed burdens of proof in the instrument, nor any justification for their imposition. The statement of compatibility for the instrument similarly fails to identify and address the reversal of the burden of proof as a human rights issue.

The committee's expectation is that the appropriateness of provisions which reverse evidential and legal burdens of proof should be explicitly addressed in the ES,

with reference to the relevant principles as set out in the Offences Guide.

The committee requests the minister's advice in relation to the justification for the placement of the evidential or legal burdens of proof upon defendants in each of the instances noted above, and requests that the ES be amended to include that information.

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[1] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/Pag es/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx.