Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024
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. This Bill would amend the Ombudsman Act and the IGT Act to implement the Government's response to recommendations 21.1 and 21.2 of the Report of the Royal Commission by:
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- imposing a statutory duty on agency heads and their staff to use their best endeavours to assist the Ombudsman and the IGTO in the performance of all their functions (recommendation 21.1)
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- enhancing the Ombudsman's and IGTO's powers to obtain full, free and direct access to agency records by introducing a provision equivalent to section 33(3) of the Auditor-General Act, requiring agencies to provide all reasonable facilities and assistance (recommendation 21.2).
3. In addition to implementing these recommendations, the Bill would:
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- modernise and enhance the investigatory powers of the Ombudsman and IGTO by providing a power to obtain access to documents and other records by remote means
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- extend the new and enhanced duties and powers contained in the Bill to apply to all statutory offices held by the Ombudsman under the Ombudsman Act
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- amend the IGIS Act to clarify the IGIS is entitled to reasonable facilities and assistance when making preliminary inquiries of the head of an intelligence agency
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- make technical amendments to the Ombudsman Act to clarify provisions and improve readability of the Act.
Human rights implications
4. This Bill engages the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
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- the right to a presumption of innocence under article 14(2)
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- the prohibition on interference with privacy under article 17.
Right to a presumption of innocence
5. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.
6. This Bill would limit the right to the presumption of innocence because it would:
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- impose strict liability for elements of certain offences, and
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- place a reversed evidential burden on defendants with respect to certain defences to offences.
7. To be permissible, limitations on the presumption of innocence must be reasonable, necessary and proportionate to achieving a legitimate objective. A legitimate objective must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.
8. Items 3, 4 and 9 of Schedule 1 would introduce offences for failing to provide reasonable facilities and assistance for the effective exercise of certain powers under the Ombudsman Act related to entry to premises, and access to documents and other records by remote means.
Strict liability
9. Items 3, 4 and 9 of Schedule 1 would introduce offences, each of which apply strict liability to several elements of the respective offence. The effect of applying strict liability to an element of an offence is that no fault element needs to be proved in relation to the element for which strict liability applies.
10. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault by the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.
11. Strict liability would apply to two elements of the respective offences at items 3, 4 and 9 of Schedule 1, namely that:
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- the person is:
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- the occupier or in charge of a premises being accessed for the purposes of exercising the relevant information-gathering power (item 3), or
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- the principal officer of a department or prescribed authority or a Commonwealth service provider of a department or a prescribed authority under a contract (items 4 and 9), and
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- an authorised person exercises or purports to exercise the relevant information-gathering power.
12. It is appropriate that these elements do not require proof of fault as they are jurisdictional elements, rather than elements going to the essence of the offence. While the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that absolute liability should typically apply to jurisdictional elements, it is appropriate that strict liability instead applies to these elements. This is because it is appropriate that a defence of honest and reasonable mistake of fact is available.
13. Strict liability will only apply to the jurisdictional elements in two limbs of each offence and not the offence as a whole. The prosecution is still required to prove fault in relation to the remaining limb of the respective offences – that the person does not provide the authorised person with reasonable facilities and assistance for the effective exercise of the relevant power. Defences will also remain available for the offence.
14. Therefore, to the extent that the application of strict liability to elements of the offences introduced by this Bill limit the right to the presumption of innocence, the limitations are reasonable, necessary and proportionate to a legitimate objective.
Reversed evidential burden
15. Reversal of the evidential burden may amount to a limitation of the right to a presumption of innocence. However, under international human rights law, a reversed evidential burden will not necessarily limit the presumption of innocence provided the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.
16. Items 4 and 9 of this Bill would include defences to the respective offences of failing to provide reasonable facilities and assistance to the Ombudsman when exercising powers to access documents or records remotely. These offence-specific defences would apply where providing reasonable facilities and assistance to an authorised person exercising remote access powers would pose an unacceptable risk to the security of any of the documents or other records held in electronic form, or otherwise to the system where the documents or other records are stored. The defences would operate in addition to the general defences available at criminal law.
17. The defences at items 4 and 9 would apply the evidential burden set out in subsection 13.3(3) of the Criminal Code to a defendant. This would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the respective defence (ie. that there was an unacceptable risk to security) exist or do not exist. If the defendant discharges the evidential burden, the prosecution is then required to discharge its legal burden to disprove that matter.
18. In line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the offence-specific defences in the Bill are appropriate as the relevant matters in relation to the defence are peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish these matters. A defendant would have specific knowledge regarding the documents or other records and the systems in which those documents or other records are held, including the nature and magnitude of any risks to the security of those documents, records or systems.
19. Therefore, to the extent that reversing the evidential burden for the defences would limit the presumption of innocence, limitations are reasonable, necessary and proportionate to a legitimate objective of facilitating the timely and effective access to information relevant to an investigation by the Ombudsman, provided this can occur in an appropriately secure way.
Prohibition on interference with privacy
20. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, and prohibits unlawful attacks on a person's reputation. The right to privacy includes respect for informational privacy, including in relation to storing, using and sharing private information, as well as the right to control the dissemination of personal and private information. To be permissible as a matter of international human rights law, interferences with privacy must be according to law and not arbitrary. Any limitation should be proportionate to the objectives of the limitation.
21. Items 2, 3, and 4 of Schedule 1 of this Bill would enhance the information-gathering powers of the Ombudsman to ensure an authorised person has full, free and direct access to documents or other records (including by remote means) for the purposes of an investigation under the Ombudsman Act. The authorised person would be able to access the documents or records and to inspect, take extracts from, or make copies of, any such documents or other records that are relevant to their investigation. Information, documents or other records accessed by the Ombudsman could include personal information.
22. These enhanced powers would be extended to other statutory offices established by the Ombudsman Act, such as the Defence Force Ombudsman, Postal Industry Ombudsman and Private Health Insurance Ombudsman. This is given effect either by amendments in the Bill or existing deeming provisions in the Ombudsman Act, depending on the statutory office.
23. Additionally, item 13 of Schedule 1 of this Bill would impose a new general duty on certain persons to use their best endeavours to assist in the performance of the Ombudsman's functions. This may include providing information, documents or other information relevant to the Ombudsman's functions. This general duty would also extend to the other statutory offices established by the Ombudsman Act, either through amendments in the Bill or existing deeming provisions in the Ombudsman Act.
24. Importantly, amendments in the Bill do not expand the scope or nature of information that the Ombudsman can access under its existing powers. Rather, the amendments would reinforce the Ombudsman's existing ability to access this information and expand the means by which information can be accessed to ensure consistency with contemporary practices.
25. Any information, once obtained by the Ombudsman, will be protected by legislative and policy frameworks to which the Ombudsman is subject. This includes protections under the Privacy Act 1988, the Protective Security Policy Framework and restrictions on disclosure under section 35 of the Ombudsman Act (which provides an offence for improper disclosure of information obtained in the course of duties and functions under the Ombudsman Act).
26. To the extent the amendments limit the right to privacy, this is a permissible limitation. The amendments are reasonable and necessary to ensure the Ombudsman has access to sufficient information to perform its important oversight role effectively and independently, and are directed to the legitimate objective of ensuring robust oversight of bodies within the Ombudsman's jurisdiction.
Conclusion
27. This Bill is compatible with human rights. To the extent that the Bill would limit the right to the presumption of innocence and right to privacy, those limitations are reasonable, necessary and proportionate in pursuit of a legitimate objective.