Addendum to the Explanatory Memorandum(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts the Honourable Paul Fletcher MP)
This addendum to the explanatory memorandum to the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 provides further explanation of the provisions of the Bill.
This addendum also responds to concerns raised by the Parliamentary Joint Committee on Human Rights in Report No. 13 of 2020, dated 13 November 2020.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Statement of Compatibility with Human Rights
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. It contains additional information to, and should be read in conjunction with, the Statement of Compatibility with Human Rights contained in the Explanatory Memorandum.
RADIOCOMMUNICATIONS LEGISLATION AMENDMENT (REFORM AND MODERNISATION) BILL 2020
The 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.
Civil penalty provisions in Schedules 4 and 6 of the Bill that apply to individuals
Schedule 4 of the Bill repeals and substitutes Part 4.1 of the Radiocommunications Act 1992 (the Act) which deals with the regulation of radiocommunications equipment and prohibitions regarding possession and use. The effective regulation of equipment is necessary to contain interference to radiocommunications, provide for the electromagnetic compatibility of equipment, and to protect the health and safety of individuals from adverse effects attributable to radio emissions.
Schedule 4 of the Bill contains a number of civil penalty provisions that could apply to an individual in some circumstances. These provisions include:
- non-compliance with an interim ban on equipment related to the operation of such equipment in proposed section 170, and
- non-compliance with a permanent ban on equipment related to the possession or operation of such equipment in proposed section 176.
While these provisions can apply to individuals, the high levels of civil penalty available under section 176 would not apply until processes specified in the Bill had been undertaken. These include the Australian Communications and Media Authority (ACMA) issuing a permanent ban by legislative instrument, following public consultation, and the expiry of any amnesty period determined by ACMA, during which the individual would have the opportunity to forfeit the equipment without penalty. It is also expected that alternative enforcement options will generally be more appropriate in the case of non-compliance by individuals.
Schedule 6 of the Bill introduces a graduated set of enforcement tools to enable ACMA to take proportionate action in response to non-compliance with the provisions of the Act. As part of this, Schedule 6 introduces several civil penalty provisions and also repeals a number of the current criminal penalties and replaces these with civil penalty provisions where this provides a more appropriate response than a criminal sanction.
Schedule 6 also contains a number of civil penalties that could, in some circumstances, apply to an individual. These provisions include amendments to:
- section 46, which concerns the operation of a radiocommunications device without a licence,
- section 47, which concerns the unauthorised possession of a radiocommunications device, and
- section 197, which concerns reckless conduct that may result in substantial interference, disruption or disturbance to radiocommunications.
Sections 46 and 47 would not apply to individuals who were working for an organisation that holds an appropriate licence under the Act. Section 197 concerns conduct that can cause significant harm to radiocommunications and risks to health and safety.
The remaining civil penalty provisions in Schedules 4 and 6 to the Bill apply to either licensees or businesses that deal with radiocommunications equipment and, consistent with related advice in the Statement of Compatibility with Human Rights contained in the Explanatory Memorandum to the Bill, this class of persons can reasonably be expected to be aware of their obligations under the legislation.
Characterisation of the civil penalty provisions
Having regard to the aims, quantum, exemptions and broader regulatory context, it is appropriate to conclude that these civil penalty provisions should not be regarded as criminal penalties for the purposes of human rights law.
The civil penalties in the Bill are intended to regulate conduct in a manner proportionate with reference to the regulatory context, and the nature of the regulated industry. The civil penalty provisions, including the instances where a comparatively high civil penalty may be applied (for example, the proposed section 176), are designed to be commensurate with the potential harm caused in the form of disruption to radiocommunications and risks to health and safety from non-compliant radio emissions. The amount of the penalties is in line with similar penalties in regulatory regimes relating to product bans under the Australian Consumer Law and the transportation of dangerous goods.
The Act also provides suitable exemptions from the civil penalty provisions mentioned above which is relevant to their characterisation as civil penalties for the purposes of human rights law. Section 27 of the Act allows ACMA to determine that acts or omissions by a person performing their duties or functions in a specified organisation or in relation to defence, law enforcement or the response to an emergency are exempt from all or part of Parts 3.1, 4.1 or 4.2. This includes a person performing their duties as part of a fire-fighting, civil defence or rescue organisation. The proposed subsection 269(6) in Schedule 4 to the Bill also provides that a person is not liable to a civil penalty for conduct that is reasonable in response to an emergency.
In relation to members of the public, the Act provides for the exemption of persons from licensing provisions in the Act in circumstances where it is considered appropriate. For example, section 49 of the Act provides that a person operating a radiocommunications device in an emergency does not contravene the prohibitions in sections 46 and 47 requiring a person operating or possessing a device to have a licence.
In the broader regulatory context, the civil penalties are part of a graduated set of enforcement tools that also include infringement notices (which extinguish future liability and have a maximum penalty of 12 penalty units for individuals) and forfeiture notices (which extinguish future liability on the condition that non-compliant equipment is forfeited to ACMA). These additional tools are designed to assist ACMA to deal proportionately with lower level non-compliance with the Act, such as inadvertent contraventions by individuals.
Based on these considerations, the civil penalty provisions should not be characterised as criminal penalties for the purposes of human rights law. Accordingly, criminal process rights are not engaged by the civil penalty provisions of the Bill.
The Bill is compatible with human rights because it promotes the right to an adequate standard of living and the continuous improvement of living conditions and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.