Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Civil Law and Justice Legislation Amendment Bill 2014

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 of the Bill</ SUBHDR>

12. This Bill is an omnibus bill which makes a number of minor, technical and uncontroversial amendments to the following Acts:

Bankruptcy Act 1966

13. The amendments to the Bankruptcy Act will provide for:

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the Official Trustee to act as a special trustee for other Government agencies

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the Official Receiver to require a person to produce books without also having to require them to physically attend

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support (either in the form of property or cash) given under the National Disability Insurance Scheme to not be divisible in bankruptcy

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the offence of concealment under subsection 265(4) of the Bankruptcy Act to be expanded to ensure that it covers electronic fund transfers

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section 267 of the Bankruptcy Act to be amended in order to provide that if a declaration is contained in a statement that was received by the Official Receiver electronically, and was purported to be made by a particular person; the declaration is presumed to have been made by the person, in the absence of evidence to the contrary

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the distinction in the Bankruptcy Act between indictable and summary offences to be aligned with the distinction in the Crimes Act 1914 between indictable and summary offences, and

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the locus of certain offences in the Bankruptcy Act to be clarified.

Copyright Act 1968

14. The purpose of the amendments to the Copyright Act is to extend the legal deposit scheme to require publishers of certain literary, dramatic, musical or artistic works in electronic form to deliver copies of their works to the National Library. The current scheme only captures hardcopy material.

Court Security Act 2013

15. The Court Security Act creates a framework for court security arrangements for the High Court of Australia, Federal Court of Australia, Family Court of Australia, Federal Circuit Court of Australia, Family Court of Western Australia and the Administrative Appeals Tribunal.

16. The amendments will provide for the disposal of unclaimed items seized by or given up on request to court security officers. The amendments will also clarify provisions relating to the variation and revocation of court security orders, and will create an appeal pathway to the Family Court of Australia for court security orders made by the Family Court of Western Australia. This will support the ability of court users to access the courts.

Evidence Act 1995

17. The Evidence Act sets out the rules of evidence that apply to proceedings in federal courts. The Act is based on the Model Uniform Evidence Bill, which was endorsed by the then Standing Committee of Attorneys-General. The Evidence Act is in most respects uniform with the evidence legislation of New South Wales, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory.

18. The amendments mirror minor amendments to the Model Uniform Evidence Bill, as endorsed by the then Standing Committee of Attorneys-General. The amendments relate to self-incrimination certificates and the definition of 'unavailability of persons'. Other amendments are technical in nature but will improve the readability and usefulness of the Evidence Act.

Family Law Act 1975

19. The Family Law Act sets out the rules for dealing with all of the various aspects of relationship breakdown, including making arrangements for the future parenting of children and for the resolution of property disputes.

20. The most significant of the amendments will add an exception to section 121 of the Family Law Act to explicitly permit the provision of certain information to prescribed State and Territory child welfare authorities. The amendment is intended to confirm that such disclosure is not publication or dissemination to the public or to a section of the public for the purposes of subsection 121(1).

21. The other amendments to the Family Law Act will update a number of provisions to remove obsolete references, correct errors and ensure the use of consistent language.

International Arbitration Act 1974

22. The amendments will clarify the application of the Act to international commercial arbitration agreements.

Protection of Movable Cultural Heritage Act 1986

23. The amendments will allow the continued functioning of the National Cultural Heritage Committee when membership falls below the maximum number.

Human rights implications

24. The Bill engages the following human rights:

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the right to an effective remedy

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the rights of persons with disabilities

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the right to privacy, and

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the right to a fair trial.

25. The amendments to the International Arbitration Act 1974 and the Protection of Movable Cultural Heritage Act 1986 proposed by the Bill do not engage any human rights.

The right to an effective remedy

26. Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) imposes an obligation on States Parties to provide an effective remedy to a person whose human rights and freedoms have been violated.

Court Security Act 2013

27. The Court Security Act allows courts to appoint security officers or other court officers to exercise a range of security powers. Under the Court Security Act, a member of the Family Court of Australia, Family Court of Western Australia or the Federal Circuit Court of Australia may also make court security orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts. Court security orders are restraining or protection type orders which restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court.

28. The Bill, through amendments to the Court Security Act, will create an appeals pathway for the decisions of the Family Court of Western Australia in relation to court security orders under the Court Security Act. Under the existing provisions, there are no appeal rights for such decisions.

29. The Bill will also clarify the process by which parties can apply to have court security orders varied or revoked.

30. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to court security orders. This amendment advances human rights because it supports the right to an effective remedy.

The rights of persons with disabilities

i. The rights of persons with disabilities to enjoy all human rights and fundamental freedoms

31. Article 1 of the Convention on the Rights of Persons with Disabilities (CRPD) provides that its purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities, and to promote respect for their inherent dignity. Under Article 5 of the CRPD, people with disability are entitled to equal legal rights and protection before the law.

Evidence Act 1995

32. The Bill will replace a reference in the title of section 31 of the Evidence Act to 'deaf and mute witnesses' to 'witnesses who cannot hear or speak adequately'. The amendment will make the title consistent with the terminology used in the body of the section, but will have no substantive legal effect.

33. The amendment advances human rights and supports the rights of persons with disabilities. The reference to 'witnesses who cannot hear or speak adequately' is more inclusive and acknowledges the broad spectrum of communication disabilities.

34. The Bill will also amend the definition of 'unavailability of persons' in the Evidence Act so that persons who are mentally or physically incapable of giving evidence are taken not to be available to give evidence. Under the Evidence Act, the hearsay rule (which would otherwise exclude such evidence) does not apply to previous representations of persons who are not available to give evidence about a fact. This amendment implements a 2005 recommendation of the Australian, New South Wales and Victorian Law Reform Commissions. ^[1]

35. This amendment will ensure that relevant evidence is not excluded under the hearsay rule due to the witness being mentally or physically incapable of giving evidence. The amendment will support the rights of persons with disabilities to have their representations recognised in a court of law.

ii. The right of all persons with disabilities to live independently, to be included in the community, and to access habilitation and rehabilitation services and programmes

36. Article 19 of the Convention on the Rights of Peoples with Disabilities (CRPD) recognises the equal rights of all persons with disabilities to live in the community, with choices equal to others, and requires States Parties to the Convention to take effective and appropriate measures to facilitate this right.

Bankruptcy Act 1966

37. Article 26 of the CRPD provides that States Parties shall take effective and appropriate measures, including comprehensive habilitation and rehabilitation services and programmes, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

38. Item 11 of Schedule 1 of the Bill (which will amend the Bankruptcy Act) provides that 'supports' or 'NDIS amounts' do not vest in the trustee in the event of bankruptcy. 'Supports' and 'NDIS amounts' are provided under the National Disability Insurance Scheme Act 2013. In other words, the payments and property provided under the National Disability Insurance Scheme Act are retained by the bankrupt. This ensures that assistance provided under the National Disability Insurance Scheme Act to:

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promote the equal right of all persons with disabilities to live in the community, with choices equal to others, and

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promote the right to live independently and be included in the community and to promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation

is not affected by the person who is receiving the assistance becoming bankrupt.

The right to privacy

39. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) imposes an obligation on States Parties to provide everyone with protection of the law from arbitrary or unlawful interference with their privacy.

Family Law Act 1975

40. Section 121 of the Family Law Act restricts the publication of any accounts of any proceedings, or parts of any proceedings, under the Act that identify the parties or others involved in the case. The restriction applies to publication, or other dissemination, to the public or a section of the public, and can apply to disclosures online as well as through the media. A breach of section 121 is an offence punishable by imprisonment of up to one year.

41. In 2013 the Attorney-General's Department engaged Professor Richard Chisholm (a former Judge of the Family Court) to chair a taskforce to report on how experts' reports can be better shared between the federal family law system and the State and Territory child protection systems. Professor Chisholm's report identified the existence of differing views about whether section 121 operates to prohibit the provision of family court reports to agencies within the State and Territory child protection systems. Because of these differing views some child welfare agencies currently seek explicit court orders to obtain court documents, such as experts' reports. This is despite the apparent strength of the contrary view that the release of such information to a State or Territory child welfare authority is not publication or dissemination to the public or to a section of the public. The report recommended that the Commonwealth review the wording of section 121 and consider removing this doubt to state explicitly that it does not apply to the provision of information to the child protection system.

42. The amendment to section 121 will confirm that the release of court material to State and Territory child welfare authorities does not breach section 121 by explicitly permitting the communication of any pleading, transcript of evidence or other document to a prescribed State or Territory child welfare authority. The purpose of explicitly authorising the release of this information is to enable appropriate information sharing between the family law and child protection systems to ensure the best possible outcomes for children.

43. The fact that the publication or dissemination of certain information is permitted by the explicit inclusion of an exception in section 121 will not make the release of information lawful if the provision of that information is prohibited by other legislation.

The right to a fair trial

44. The right to a fair trial is protected in article 14 of the International Covenant on Civil and Political Rights (ICCPR) and includes certain minimum guarantees applicable to criminal proceedings.

Court Security Act 2013

45. The Court Security Act allows courts to appoint security officers or other court officers to exercise a range of security powers. Under the Court Security Act, a member of the Family Court of Australia, Family Court of Western Australia or the Federal Circuit Court of Australia may also make court security orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts. Court security orders are restraining or protection type orders which restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court.

46. The Bill, through amendments to the Court Security Act, will create an appeals pathway for the decisions of the Family Court of Western Australia in relation to court security orders under the Court Security Act. Under the existing provisions, there are no appeal rights for such decisions.

47. The Bill will also clarify the process by which parties can apply to have court security orders varied or revoked.

48. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to court security orders. This amendment advances human rights because it supports the right to a fair trial.

Evidence Act 1995

49. The right to a fair trial includes certain minimum guarantees in criminal proceedings, including the right to be free from self-incrimination (article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR)).

50. Under domestic law, the right to be free from self-incrimination and the right to be free from self-exposure to a civil penalty (together referred to here as 'self-incrimination') may be limited where expressly abrogated by statute. The Evidence Act sets out the rules of evidence that apply to proceedings in federal courts. The Evidence Act provides for how evidence is adduced in proceedings, the admissibility of evidence (including privileges), proof of matters, and other miscellaneous matters.

51. The Evidence Act provides for the privilege against self-incrimination, but limits the privilege by requiring the witness to give self-incriminatory evidence in certain circumstances. In such cases a self-incrimination certificate must be given. It has the effect that the evidence given by the witness may not be used directly or indirectly against the witness in court proceedings. The self-incrimination certificate is a safeguard and protects the witness.

52. The Bill will include amendments to the Evidence Act to clarify that a court must inform the witness of certain matters before the witness gives self-incriminating evidence (whether voluntarily or as a requirement by the court). These matters relate to how the privilege against self-incrimination works, the circumstances in which the witness can be required to give evidence and how any such evidence given is protected under a self-incrimination certificate.

53. The Bill will also include amendments to the Evidence Act to provide that certificates issued to persons required to disclose self-incriminatory evidence before a trial under a search or freezing order under prescribed State or Territory provisions will be mutually recognised in federal courts as if they had been issued under the Commonwealth Evidence Act. This will have the effect that self-incriminatory evidence in respect of which a certificate is given by a State or Territory court under a prescribed State or Territory provision may not be used directly or indirectly against the witness in proceedings in federal courts, in addition to a court of that State or Territory.

54. These amendments will strengthen the existing protections provided by self-incrimination certificates, and promote the right to be free from self-incrimination.

Bankruptcy Act 1966

55. Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty. Item 14 of Schedule 1 of the Bill, through amendments to the Bankruptcy Act, will provide that if a declaration is contained in a statement that:

(a)

was received by the Official Receiver electronically, and

(b)

was purported to be made by a particular person,

the declaration is presumed to have been made by the person, in the absence of evidence to the contrary.

56. However, this presumption does not create a legal burden of proof upon the defendant under section 13.4 of the Criminal Code Act 1995, and while there is a presumption that the declaration was made by the person whose name is on the statement, this does not amount to a presumption of guilt. The defendant can put the prosecution to proof by adducing evidence to the contrary.

57. Australia's personal insolvency system can only function properly if the various statements that a person is required to give to the Official Receiver contain accurate information. Many of the statements that the Official Receiver receives are now provided to the Official Receiver electronically. Item 14 of Schedule 1 of the Bill will help to ensure that, in cases where a statement is received electronically and contains information that the submitter knows to be false, the submitter can be charged with an offence under section 267 of the Bankruptcy Act.

Copyright Act 1968

58. The amendments to the Copyright Act will extend the legal deposit scheme to require publishers to deliver copies of their works to the National Library of Australia (National Library) in electronic format. Section 195CB will create two new offences for failing to deliver National Library material in accordance with requirements set out in section 195CD.

59. Subsection 195CB(1) will create an offence for failing to deliver published material, whether in hardcopy or electronic form, that is not available online. This offence applies to material that is published in Australia.

60. Subsection 195CB(2) will create an offence for failing to deliver published electronic material that is available online. The publisher will not be required to deliver the material unless the National Library requests that material under section 195CC.

61. The penalty for these offences will be 10 penalty units. Both offences will be offences of strict liability.

62. The presumption of innocence is contained within article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) and is one of the guarantees in relation to legal proceedings contained in article 14.

63. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.

64. Strict liability removes a fault element that would otherwise attach to a physical element. Consequently, where strict liability applies to an element of an offence, that element will be made out if it is shown that the physical elements were engaged in, or existed. The prosecution is not required to prove fault.

65. Strict liability is appropriate and required for these offences as there are legitimate grounds for penalising persons lacking 'fault' in respect of the offences of either failing to deliver offline material with the National Library, or not complying with a request from the National Library. The punishment of these offences for persons lacking fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring non-complying conduct. Furthermore, penalising persons lacking fault will place individuals and corporations on notice to guard against the possibility of any contravention. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

66. Lastly, the offences may be subject to an infringement notice scheme, and therefore, strict liability should be applied to all physical elements of the offences. An infringement notice scheme is appropriate for these offences as they are relatively minor offences, a high volume of contraventions is expected, and the penalty must be imposed immediately to be effective.

67. Consistent with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, the offences are not punishable by imprisonment, nor a fine of more than 60 penalty units (the offences are punishable by 10 penalty units).

68. However, the general defence of mistake of fact will be available to the defendant. This engages the presumption of innocence by placing a burden of proof on the defendant. Under international human rights law practice, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. The inclusion of this defence will ensure that persons who, for example, mistakenly believed that they had delivered the requested material to the National Library, but it was not received due to a technical fault may not be subjected to the penalty. In these circumstances, the evidential burden is placed on the defendant to provide evidence of the technical fault.

69. The legal deposit measures in Schedule 7 of the Bill will be compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of Schedule 7 of the Bill.

Conclusion

70. The Bill is compatible with human rights because it promotes rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.