Explanatory Memorandum(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
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 of the Bill
2. The Bill amends the Criminal Code Act 1995 (the Criminal Code) to introduce an offence which criminalises conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body.
3. It also introduces an aggravated offence, where a person makes such a false representation with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function.
4. The Bill will also trigger the injunction provisions of Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). In doing so, authorised persons will be able to apply to a relevant court for an injunction to prevent a person from engaging in conduct in contravention of the new offences in the Criminal Code.
5. The purpose of the Bill is to protect Australian Government entities, companies and services from certain types of misrepresentations and false statements, safeguarding the proper functioning of Government. The Bill will ensure the public has confidence in the legitimacy of communications emanating from Commonwealth bodies.
Human rights implications
6. This Bill engages the following rights as provided for in the International Covenant on Civil and Political Rights (ICCPR):
- the right to freedom of expression, as contained in Article 19, and
- the right to a fair and public hearing in both civil and criminal proceedings, as contained in Article 14.
7. The new offences and injunction power in proposed Division 150 of the Criminal Code engage the right to freedom of expression under Article 19(2) of the ICCPR.
8. The right to freedom of expression, as contained in Article 19(2), includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order or national security.
9. The provisions in the Bill engage the right to freedom of expression as they prohibit false representations that a person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body. The Bill will prevent any person from imparting information and ideas that amount to such a false representation.
10. The provisions may amount to restrictions on freedom of expression in limited circumstances. The restrictions are objective, legitimate and proportionate because they:
- are provided for by law
- serve a genuine public interest to promote public confidence in all communications emanating from Commonwealth bodies, and
- support the right to protection of public order or national security.
11. These restrictions on a person's freedom of expression are justified. The offences and injunction power are provided for by law in new Division 150 of the Criminal Code, and impose penalties which mirror offences that criminalise the impersonation of Commonwealth public officials.
12. The offences and injunction power are necessary for protecting public order. Public order encompasses the rules which ensure the peaceful and effective functioning of society, or the set of fundamental principles on which society is founded. Representations falsely purported to be from, or on behalf of, a Commonwealth body could undermine public confidence in the integrity and authority of the Australian Government. Commonwealth departments, companies, services and programmes cannot function effectively unless recipients trust the legitimacy and lawfulness of representations emanating from them.
13. The offences and injunction power are a reasonable and proportionate way of achieving the aim of protecting public order. In order to commit an offence under section 150.1, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, the relevant representation, and whether they, in fact, are a Commonwealth body, or act on behalf of, or with the authority of, a Commonwealth body. Negligent or accidental creation of a false representation will not be sufficient to establish the fault elements of these offences.
14. The offences and injunction power limit only a person's ability to make representations that falsely represent that person to be, or be acting on behalf of, or with the authority of, a Commonwealth body. The provisions do not affect genuine representations made on behalf of a Commonwealth body, or that are made with the authority of the body. They also do not impact comment or criticism about a Commonwealth body, provided this is done without falsely representing that the comment or criticism is made by or on behalf of a Commonwealth body. Further, the provisions will not impact representations made solely for genuine satirical, academic or artistic purposes.
15. New section 150.5 amends the Criminal Code to trigger the injunction provisions in Part 7 of the Regulatory Powers Act, which will enable a person whose interests have been, or would be affected by the conduct to apply to a relevant court for an injunction to restrain the person from engaging in conduct or requiring the person to do a thing. The injunction powers are triggered in relation to offences against new section 150.1 of the Criminal Code. A relevant court can only grant injunctive relief under the Regulatory Powers Act in relation to contraventions of new section 150.1.
16. Triggering the injunction provisions of the Regulatory Powers Act in relation to offences engages the rights to a fair and public trial in both civil and criminal proceedings and other criminal process rights and minimum guarantees provided for by Article 14. Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
17. Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court. Further, a court may only grant an injunction where a person has engaged, is engaging, or is proposing to engage, in conduct that contravenes section 150.1. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.
18. The amendments do not limit any of the other criminal process rights or minimum guarantees in Article 14 of the ICCPR.
19. The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.