Explanatory Memorandum
(Circulated by the authority of the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP)Chapter 17 Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Charities and Not-for-profits Commission Bill 2012
17.1 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview
17.2 This Bill establishes a national regulator, and a national regulatory framework for the not-for-profit (NFP) sector.
17.3 The purpose of the Bill is to maintain, protect and enhance the public trust and confidence in the NFP sector.
17.4 The Bill will initially apply only to charities (including public benevolent institutions). However, it is expected that this regulatory framework over time will be extended to NFPs more generally.
17.5 Further context about the objects of the Bill and the broader NFP reform agenda of which it is a part are detailed in Chapter 1.
Human rights implications
17.6 The Bill engages the following human rights.
Right to privacy
17.7 Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Privacy guarantees a right to secrecy from the public of private characteristics, actions or data.
17.8 Collecting, using, storing and sharing personal information amount to interferences with privacy.
17.9 In order for an interference with privacy not be 'arbitrary', the interference must be for a reason consistent with the ICCPR and reasonable in the particular circumstances.
17.10 'Reasonableness', in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances. Generally, this means that provisions interfering with privacy should be precise, that they should not give decision-makers too much discretion in authorising interferences, and that they should provide proper safeguards against arbitrary interference.
Information gathering powers and monitoring warrant
17.11 Information gathering powers and monitoring warrant regimes like the one established in this Bill engage the right to privacy in Article 17 of the ICCPR.
17.12 The provisions to facilitate investigation should be reasonable, necessary and proportionate to meeting the legitimate objective of regulating the NFP sector.
17.13 Under the Bill, the Australian Charities and Not-for-profits Commission (ACNC) will implement a report-once use often reporting framework, provide education and support to the sector, and establish the Australian Charities and Not-for-profits (ACN) Register.
17.14 Information contained in the ACN Register must be correct and accurate for the report-once, use-often framework to function effectively and reduce the red-tape faced by NFPs. The information gathering and monitoring power enables the Australian Charities and Not-for-profits Commission Commissioner (ACNC Commissioner) to validate the accuracy of the information contained in the ACN Register.
17.15 The ACNC will not be responsible for ensuring that product and service standards are met. However, to function effectively as a one-stop-shop regulator for the sector, the ACNC will need to have appropriate powers to takes samples of products or inspect items on premises with a view to sharing the information gathered with authorities.
17.16 The investigation and monitoring powers of the ACNC override the privilege against self-incrimination by providing that, a person is not excused from producing information or documents or answering a question on the grounds that doing so would incriminate him or herself.
17.17 Consistent with the Guide to Framing Commonwealth Offences it is appropriate to override the privilege where its use could seriously undermine the effectiveness of a regulatory scheme and prevent the collection of evidence.
17.18 For example, the privilege against self-incrimination does not apply in relation to the Australian Tax Office's coercive information-gathering powers under section 264 of the Income Tax Assessment Act 1936 . As the ACNC is taking over the regulatory responsibilities of the ATO for registered entities it has been provided with equivalent powers. The Courts have accepted that retaining such a privilege in such cases would frustrate the regulator in the exercise of its functions. [2]
17.19 However unlike the powers of the ATO this legislation constrains the use of any incriminating evidence by providing both use and derivative use immunity to protect the rights of individuals.
17.20 It is also critical for the legislation to contain safeguards to protect the interests of registered entities and the privacy of employees of these entities. This will be balanced through having specific conditions that are required to be satisfied prior to using these powers.
17.21 By providing these additional safeguards, the provisions that facilitate investigation are reasonable and necessary in the circumstances and required to meet the objects of the Bill. These provisions are therefore consistent with the requirements of Article 17 of the ICCPR.
Disclosure of personal information
17.22 The disclosure of personal information by a government authority, as authorised in certain circumstances as part of the secrecy framework in the Bill, engages the right to privacy in Article 17 of the ICCPR.
17.23 The provisions that authorise the disclosure of personal information should be reasonable, necessary and proportionate to meeting the legitimate objective of regulating the NFP sector.
17.24 Under the Bill the secrecy framework authorises the disclosure of information to Australian Government agencies and on the ACN Register. There are also transitional secrecy provisions within the Bill that enable disclosure of protected taxation information from the Commissioner of Taxation to the ACNC for the ACN Register, and these disclosures are also subject to the secrecy framework within the Bill.
17.25 However, the Bill limits these disclosures by requiring the relevant ACNC officer to consider whether the disclosure is consistent with the objects of the Bill (which includes protecting and enhancing the public trust and confidence in the NFP sector) and to be satisfied that the protected ACNC information is being disclosed for a legitimate purpose.
17.26 This additional requirement for consideration against the objects of the Bill will provide the necessary safeguard against arbitrary interference with privacy and is therefore consistent with the requirements of Article 17 of the ICCPR.
Presumption of innocence
17.27 Article 14 of the ICCPR provides that all persons shall be equal before the courts and tribunals and everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
17.28 This Article imposes on the prosecution of an offence, the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt and ensures that the accused has the benefit of doubt.
17.29 As per paragraph 30 of UN Human Rights Committee, General Comment No. 32 (2004), this human right is normally engaged where public authorities make public statements affirming the guilt of the accused, shackle or keep defendants in cages during trials indicating that they may be dangerous criminals or allow the media to show news coverage that undermines the presumption of innocence.
Placing the evidential burden on the defendant
17.30 It could potentially be argued that where legislation places an evidential burden on the defendant, this may engage the right to a presumption of innocence under Article 14 of the ICCPR.
17.31 Under subsection 13.3(3) of the Criminal Code , 'evidential burden' means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Secrecy framework
17.32 Under the Bill, there are certain exceptions that apply to the general prohibition on the use, disclosure and on-disclosure of information protected under the secrecy framework.
17.33 Where an entity seeks to rely on these exceptions, the entity will bear the evidential burden to point to evidence, such as a document or email, that suggests a reasonable possibility that they used the information or disclosed/on-disclosed the information in accordance with that exception.
17.34 It is common amongst Commonwealth secrecy regimes to place the evidential burden on the defendant where the defendant seeks to rely on an exception or defence to the general prohibition on disclosure of information (an offence-specific defence). This is appropriate because the defendant (in these situations) holds all of the evidence uniquely in their possession.
17.35 Despite the evidential burden resting on the entity, the prosecution retains the 'legal burden' of proof and is required to prove each element of an offence beyond reasonable doubt, consistent with the requirements of Article 14 of the ICCPR.
Obligations of responsible entities
17.36 Under the Bill, there are certain obligations and liabilities placed on the responsible entities of registered entities in order to ensure that registered entities and responsible entities are accountable for fulfilling their obligations under this law.
17.37 Where a responsible entity can prove illness at the relevant time, or that the responsible entity took all the actions that it would be reasonable in the circumstances to take to ensure that the registered entity complied with its obligations and liabilities, then the responsible entity would not be responsible for the obligation or liability (an offence-specific defence).
17.38 When seeking to rely on this offence-specific defence the responsible entity will bear the evidential burden to point to evidence, like a document or email, which suggests a reasonable possibility that they were ill at the relevant time or the extent of any participation in the management of the unincorporated association, or any reasonable steps taken by them.
17.39 This is consistent with the Attorney-General's Department's publication A guide to framing Commonwealth offences, infringement notices and enforcement powers , which states that an evidential burden of proof should generally apply to a defence where there is an offence-specific defence. In these situations, the defendant is in the best position to provide evidence justifying why they undertook the act that triggered the offence-specific defence.
17.40 Again, despite the evidential burden resting on the entity, the prosecution retains the 'legal burden' of proof and is required to prove each element of an offence beyond reasonable doubt, consistent with the requirements of Article 14 of the ICCPR.
Conclusion
17.41 The Bill is compatible with human rights because it advances the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.
Assistant Treasurer, the Hon David Bradbury