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Appendix 4 Guidance Note 1 and Guidance Note 2 PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS GUIDANCE NOTE 1: Drafting statements of compatibility December 2014 This note sets out the committee's approach to human rights assessments and its requirements for statements of compatibility.

It is designed to assist legislation proponents in the preparation of statements of compatibility.
Background Australia's human rights obligations Human rights are defined in the Human Rights (Parliamentary Scrutiny) Act 2011 as the rights and freedoms contained in the seven core human rights treaties to which Australia is a party.
These treaties are:        International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Convention on the Elimination of All Forms of Racial Discrimination Convention on the Elimination of All Forms of Discrimination against Women Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Australia has voluntarily accepted obligations under these seven core UN human rights treaties.
Under international law it is the state that has an obligation to ensure that all persons enjoy human rights.

Australia's obligations under international human rights law are threefold:    to respect – requiring government not to interfere with or limit human rights; to protect – requiring government to take measures to prevent others (for example individuals or corporations) from interfering with human rights; to fulfil – requiring government to take positive measures to fully realise human rights.
Where a person's rights have been breached, there is an obligation to ensure accessible and effective remedies are available to that person.

Australia's human rights obligations apply to all people subject to Australia's jurisdiction, regardless of whether they are Australian citizens.
This means Australia owes human rights obligations to everyone in Australia, as well as to persons outside Australia where Australia is exercising effective control over them, or they are otherwise under Australia’s jurisdiction.

The treaties confer rights on individuals and groups of individuals and not companies or other incorporated bodies.

Civil and political rights Australia is under an obligation to respect, protect and fulfil its obligations in relation to all civil and political rights.
It is generally accepted that most civil and political rights are capable of immediate realisation.

1 Economic, social and cultural rights Australia is also under an obligation to respect, protect and fulfil economic, social and cultural rights.

However, there is some flexibility allowed in the implementation of these rights.

This is the obligation of progressive realisation, which recognises that the full realisation of economic, social and cultural rights may be achieved progressively.
Nevertheless, there are some obligations in relation to economic, social and cultural rights which have immediate effect.

These include the obligation to ensure that people enjoy economic, social and cultural rights without discrimination.

Limiting a human right It is a general principle of international human rights law that the rights protected by the human rights treaties are to be interpreted generously and limitations narrowly.
Nevertheless, international human rights law recognises that reasonable limits may be placed on most rights and freedoms – there are very few absolute rights which can never be legitimately limited.1 For all other rights, rights may be limited as long as the limitation meets certain standards.

In general, any measure that limits a human right has to comply with the following criteria (The limitation criteria) in order for the limitation to be considered justifiable.
Prescribed by law Any limitation on a right must have a clear legal basis.

This requires not only that the measure limiting the right be set out in legislation (or be permitted under an established rule of the common law); it must also be accessible and precise enough so that people know the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.
Legitimate objective Any limitation on a right must be shown to be necessary in pursuit of a legitimate objective.

To demonstrate that a limitation is permissible, proponents of legislation must provide reasoned and evidence-based explanations of the legitimate objective being pursued.

To be capable of justifying a proposed limitation on human rights, a legitimate objective must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.
In addition, there are a number of rights that may only be limited for a number of prescribed purposes.2 Rational connection It must also be demonstrated that any limitation on a right has a rational connection to the objective to be achieved.

To demonstrate that a limitation is permissible, proponents of legislation must provide reasoned and evidence-based explanations as to how the measures are likely to be effective in achieving the objective being sought.
Proportionality To demonstrate that a limitation is permissible, the limitation must be proportionate to the objective being sought.
In considering whether a limitation on a right might be proportionate, key factors include:   1 2 whether there are other less restrictive ways to achieve the same aim; whether there are effective safeguards or controls over the measures, including the possibility of monitoring and access to review; Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law.
For example, the right to association.

For more detailed information on individual rights see Parliamentary Joint Committee on Human Rights, Guide to Human Rights (March 2014), available at http://www.aph.gov.au/~/media/Committees/Joint/PJCHR/Guide%20to%20Human%20Rights.pdf.
2    the extent of any interference with human rights – the greater the interference the less likely it is to be considered proportionate; whether affected groups are particularly vulnerable; and whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the merits of an individual case.
Retrogressive measures In respect of economic, social and cultural rights, as there is a duty to realise rights progressively there is also a corresponding duty to refrain from taking retrogressive measures.

This means that the state cannot unjustifiably take deliberate steps backwards which negatively affect the enjoyment of economic, social and cultural rights.

In assessing whether a retrogressive measure is justified the limitation criteria are a useful starting point.
The committee’s approach to human rights scrutiny The committee's mandate to examine all existing and proposed Commonwealth legislation for compatibility with Australia's human rights obligations, seeks to ensure that human rights are taken into account in the legislative process.

The committee views its human rights scrutiny tasks as primarily preventive in nature and directed at minimising risks of new legislation giving rise to breaches of human rights in practice.
The committee also considers it has an educative role, which includes raising awareness of legislation that promotes human rights.

The committee considers that, where relevant and appropriate, the views of human rights treaty bodies and international and comparative human rights jurisprudence can be useful sources for understanding the nature and scope of the human rights referred to in the Human Rights (Parliamentary Scrutiny) Act 2011.
Similarly, there are a number of other treaties and instruments to which Australia is a party, such as the International Labour Organization (ILO) Conventions and the Refugee Convention which, although not listed in the Human Rights (Parliamentary Scrutiny) Act 2011, may nonetheless be relevant to the interpretation of the human rights protected by the seven core human rights treaties.
The committee has also referred to other non-treaty instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples, where it considers that these are relevant to the interpretation of the human rights in the seven treaties that fall within its mandate.

When the committee relies on regional or comparative jurisprudence to support its analysis of the rights in the treaties, it will acknowledge this where necessary.
The committee’s expectations for statements of compatibility The committee considers statements of compatibility as essential to the examination of human rights in the legislative process.

The committee expects statements to read as stand-alone documents.

The committee relies on the statement as the primary document that sets out the legislation proponent's analysis of the compatibility of the bill or instrument with Australia's international human rights obligations.
While there is no prescribed form for statements under the Human Rights (Parliamentary Scrutiny) Act 2011, the committee strongly recommends legislation proponents use the current templates provided by the Attorney-General’s Department.

3 The statement of compatibility should identify the rights engaged by the legislation.

Not every possible right engaged needs to be identified in the statement of compatibility, only those that are substantially engaged.
The committee does not expect analysis of rights consequentially or tangentially engaged in a minor way.

3 The Attorney-General's Department guidance may be found at https://www.ag.gov.au/RightsAnd Protections/HumanRights/Human-rights-scrutiny/Pages/Statements-of-Compatibility.aspx.
3 Consistent with the approach set out in the guidance materials developed by the Attorney-General's department, where a bill or instrument limits a human right, the committee requires that the statement of compatibility provide a detailed and evidence-based assessment of the measures against the limitation criteria set out in this note.

Statements of compatibility should provide analysis of the impact of the bill or instrument on vulnerable groups.
Where the committee's analysis suggests that a bill limits a right and the statement of compatibility does not include a reasoned and evidence-based assessment, the committee may seek additional/further information from the proponent of the legislation.

Where further information is not provided and/or is inadequate, the committee will conclude its assessment based on its original analysis.
This may include a conclusion that the bill or instrument (or specific measures within a bill or instrument) are incompatible with Australia's international human rights obligations.

This approach is consistent with international human rights law which requires that any limitation on a human right be justified as reasonable, necessary and proportionate in pursuit of a legitimate objective.
Parliamentary Joint Committee on Human Rights PO Box 6100 Parliament House Canberra ACT 2600 Phone: 02 6277 3823 Fax: 02 6277 5767 E-mail: human.rights@aph.gov.au Internet: http://www.aph.gov.au/joint_humanrights 4 PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS GUIDANCE NOTE 2: Offence provisions, civil penalties and human rights December 2014 This guidance note sets out some of the key human rights compatibility issues in relation to provisions that create offences and civil penalties.
It is not intended to be exhaustive but to provide guidance on the committee's approach and expectations in relation to assessing the human rights compatibility of such provisions.

Introduction The right to a fair trial and fair hearing are protected by article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).

The right to a fair trial and fair hearing applies to both criminal and civil proceedings.
A range of protections are afforded to persons accused and convicted of criminal offences under article 14.
These include the presumption of innocence (article 14(2)), the right to not incriminate oneself (article 14(3)(g)), the right to have a sentence reviewed by a higher tribunal (article 14(5)), the right not to be tried or punished twice for the same offence (article 14(7)), a guarantee against retrospective criminal laws (article 15(1)) and the right not to be arbitrarily detained (article 9(1)).1 Offence provisions need to be considered and assessed in the context of these standards.
Where a criminal offence provision is introduced or amended, the statement of compatibility for the legislation will usually need to provide an assessment of whether human rights are engaged and limited.2 The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides a range of guidance in relation to the framing of offence provisions.3 However, legislation proponents should note that this government guide is neither binding nor conclusive of issues of human rights compatibility.
The discussion below is intended to assist legislation proponents to identify matters that are likely to be relevant to the framing of offence provisions and the assessment of their human rights compatibility.

Reverse burden offences Article 14(2) of the ICCPR protects the right to be presumed innocent until proven guilty according to law.

Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.
1 2 3 For a more comprehensive description of these rights see Parliamentary Joint Committee on Human Rights, Guide to Human Rights (March 2014), available at http://www.aph.gov.au/~/media/Committees /Joint/PJCHR/Guide%20to%20Human%20Rights.pdf.

The requirements for assessing limitations on human rights are set out in Guidance Note 1: Drafting statements of compatibility (December 2014).
See Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 edition, available at http://www.ag.gov.au/Publications/Documents/GuidetoFraming CommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%2 0Cth%20Offences.pdf.
1 An offence provision which requires the defendant to carry an evidential or legal burden of proof, commonly referred to as 'a reverse burden', with regard to the existence of some fact engages and limits the presumption of innocence.

This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt.
Where a statutory exception, defence or excuse to an offence is provided in proposed legislation, these defences or exceptions must be considered as part of a contextual and substantive assessment of potential limitations on the right to be presumed innocent in the context of an offence provision.
Reverse burden offences will be likely to be compatible with the presumption of innocence where they are shown by legislation proponents to be reasonable, necessary and proportionate in pursuit of a legitimate objective.

Claims of greater convenience or ease for the prosecution in proving a case will be insufficient, in and of themselves, to justify a limitation on the defendant's right to be presumed innocent.
It is the committee's usual expectation that, where a reverse burden offence is introduced, legislation proponents provide a human rights assessment in the statement of compatibility, in accordance with Guidance Note 1.

Strict liability and absolute liability offences Strict liability and absolute liability offences engage and limit the presumption of innocence.

This is because they allow for the imposition of criminal liability without the need to prove fault.
The effect of applying strict liability to an element or elements of an offence therefore means that the prosecution does not need to prove fault.

However, the defence of mistake of fact is available to the defendant.

Similarly, the effect of applying absolute liability to an element or elements of an offence means that no fault element needs to be proved, but the defence of mistake of fact is not available.
Strict liability and absolute liability offences will not necessarily be inconsistent with the presumption of innocence where they are reasonable, necessary and proportionate in pursuit of a legitimate objective.

The committee notes that strict liability and absolute liability may apply to whole offences or to elements of offences.
It is the committee's usual expectation that, where strict liability and absolute liability criminal offences or elements are introduced, legislation proponents should provide a human rights assessment of their compatibility with the presumption of innocence, in accordance with Guidance Note 1.

Mandatory minimum sentencing Article 9 of the ICCPR protects the right to security of the person and freedom from arbitrary detention.
An offence provision which requires mandatory minimum sentencing will engage and limit the right to be free from arbitrary detention.

The notion of 'arbitrariness' under international human rights law includes elements of inappropriateness, injustice and lack of predictability.
Detention may be considered arbitrary where it is disproportionate to the crime that has been committed (for example, as a result of a blanket policy).4 Mandatory sentencing may lead to disproportionate or unduly harsh outcomes as it removes judicial discretion to take into account all of the relevant circumstances of a particular case in sentencing.

Mandatory sentencing is also likely to engage and limit article 14(5) of the ICCPR, which protects the right to have a sentence reviewed by a higher tribunal.
This is because mandatory sentencing prevents judicial review of the severity or correctness of a minimum sentence.

The committee considers that mandatory minimum sentencing will be difficult to justify as compatible with human rights, given the substantial limitations it places on the right to freedom 4 See, for example, A v Australia (1997) 560/1993, UN Doc.
CCPR/C/59/D/560/1993, [9.4]; Concluding Observations on Australia in 2000 (2000) UN doc A/55/40, volume 1, [522] (in relation to mandatory sentencing in the Northern Territory and Western Australia).

2 from arbitrary detention and the right to have a sentence reviewed by a higher tribunal (due to the blanket nature of the measure).
Where mandatory minimum sentencing does not require a minimum non-parole period, this will generally be insufficient, in and of itself, to preserve the requisite judicial discretion under international human rights law to take into account the particular circumstances of the offence and the offender.5 Civil penalty provisions Many bills and existing statutes contain civil penalty provisions.
These are generally prohibitions on particular forms of conduct that give rise to liability for a 'civil penalty' enforceable by a court.

As these penalties are pecuniary and do not include the possibility of imprisonment, they are said to be 'civil' in nature and do not constitute criminal offences under Australian law.

Given their 'civil' character, applications for a civil penalty order are dealt with in accordance with the rules and procedures that apply in relation to civil matters.
These rules and procedures often form part of a regulatory regime which provides for a graduated series of sanctions, including infringement notices, injunctions, enforceable undertakings, civil penalties and criminal offences.

However, civil penalty provisions may engage the criminal process rights under articles 14 and 15 of the ICCPR where the penalty may be regarded as 'criminal' for the purpose of international human rights law.

The term 'criminal' has an 'autonomous' meaning in human rights law.
In other words, a penalty or other sanction may be 'criminal' for the purposes of the ICCPR even though it is considered to be 'civil' under Australian domestic law.

There is a range of international and comparative jurisprudence on whether a 'civil' penalty is likely to be 'criminal' for the purpose of human rights law.6 This criteria for assessing whether a penalty is 'criminal' for the purposes of human rights law is set out in further detail on page 4.
The following steps (one to three) may assist legislation proponents in understanding whether a provision may be characterised as 'criminal' under international human rights law.

  Step one: Is the penalty classified as criminal under Australian Law?

If so, the penalty will be considered 'criminal' for the purpose of human rights law.

If not, proceed to step two.

Step two: What is the nature and purpose of the penalty?
The penalty is likely to be considered criminal for the purposes of human rights law if: a) the purpose of the penalty is to punish or deter; and b) the penalty applies to the public in general (rather than being restricted to people in a specific regulatory or disciplinary context.)

If the penalty does not satisfy this test, proceed to step three.

 Step three: What is the severity of the penalty?


The penalty is likely to be considered criminal for the purposes of human rights law if the civil penalty provision carries a penalty of imprisonment or a substantial pecuniary sanction.

Note: even if a penalty is not considered 'criminal' separately under steps two or three, it may still be considered 'criminal' where the nature and severity of the penalty are cumulatively considered.
5 6 This is because the mandatory minimum sentence may be seen by courts as a ‘sentencing guidepost’ which specifies the appropriate penalty for the least serious case.

Judges may feel constrained to impose, for example, what is considered the usual proportion for a non-parole period (approximately 2/3 of the head sentence).
The UN Human Rights Committee, while not providing further guidance, has determined that 'civil; penalties may be 'criminal' for the purpose of human rights law, see, for example, Osiyuk v Belarus (1311/04); Sayadi and Vinck v Belgium (1472/06).
3 When a civil penalty provision is 'criminal' In light of the criteria described at pages 3-4 above, the committee will have regard to the following matters when assessing whether a particular civil penalty provision is ‘criminal’ for the purposes of human rights law.

a) Classification of the penalty under domestic law The committee considers that in accordance with international human rights law, the classification of the penalty as 'civil' under domestic law will not be determinative.
However, if the penalty is 'criminal' under domestic law it will also be 'criminal' under international law.
b) The nature of the penalty The committee considers that a civil penalty provision is more likely to be considered 'criminal' in nature if it contains the following features:     the penalty is intended to be punitive or deterrent in nature, irrespective of its severity; the proceedings are instituted by a public authority with statutory powers of enforcement; a finding of culpability precedes the imposition of a penalty; and the penalty applies to the public in general instead of being directed at people in a specific regulatory or disciplinary context (the latter being more likely to be viewed as 'disciplinary' or regulatory rather than as ‘criminal’).
c) The severity of the penalty In assessing whether a pecuniary penalty is sufficiently severe to amount to a 'criminal' penalty, the committee will have regard to:     the amount of the pecuniary penalty that may be imposed under the relevant legislation with reference to the regulatory context; the nature of the industry or sector being regulated and relative size of the pecuniary penalties and the fines that may be imposed (for example, large penalties may be less likely to be criminal in the corporate context); the maximum amount of the pecuniary penalty that may be imposed under the civil penalty provision relative to the penalty that may be imposed for a corresponding criminal offence; and whether the pecuniary penalty imposed by the civil penalty provision carries a sanction of imprisonment for non-payment, or other very serious implications for the individual in question.
The consequences of a conclusion that a civil penalty is 'criminal' If a civil penalty is assessed to be 'criminal' for the purposes of human rights law, this does not mean that it must be turned into a criminal offence in domestic law.

Human rights law does not stand in the way of decriminalisation.

Instead, it simply means that the civil penalty provision in question must be shown to be consistent with the criminal process guarantees set out the articles 14 and 15 of the ICCPR.
By contrast, if a civil penalty is characterised as not being 'criminal', the specific criminal process guarantees in articles 14 and 15 will not apply.

However, such provisions must still comply with the right to a fair hearing before a competent, independent and impartial tribunal contained in article 14(1) of the ICCPR.

The Senate Standing Committee for the Scrutiny of Bills may also comment on whether such provisions comply with accountability standards.
As set out in Guidance Note 1, sufficiently detailed statements of compatibility are essential for the effective consideration of the human rights compatibility of bills and legislative instruments.
Where 4 a civil penalty provision could potentially be considered 'criminal' the statement of compatibility should:   explain whether the civil penalty provisions should be considered to be 'criminal' for the purposes of human rights law, taking into account the criteria set out above; and if so, explain whether the provisions are consistent with the criminal process rights in articles 14 and 15 of the ICCPR, including providing justifications for any limitations of these rights.
It will not be necessary to provide such an assessment in the statement of compatibility on every occasion where proposed legislation includes civil penalty provisions or draws on existing civil penalty regimes.

For example, it will generally not be necessary to provide such an assessment where the civil penalty provision is in a corporate or consumer protection context and the penalties are small.
Criminal process rights and civil penalty provisions The key criminal process rights that have arisen in the committee’s scrutiny of civil penalty provisions include the right to be presumed innocent (article 14(2)) and the right not to be tried twice for the same offence (article 14 (7)).

For example:   article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) protects the right to be presumed innocent until proven guilty according to law.
This requires that the case against the person be demonstrated on the criminal standard of proof, that is, it must be proven beyond reasonable doubt.

The standard of proof applicable in civil penalty proceedings is the civil standard of proof, requiring proof on the balance of probabilities.
In cases where a civil penalty is considered 'criminal', the statement of compatibility should explain how the application of the civil standard of proof for such proceedings is compatible with article 14(2) of the ICCPR.

article 14(7) of the ICCPR provides that no-one is to be liable to be tried or punished again for an offence of which she or he has already been finally convicted or acquitted.
If a civil penalty provision is considered to be 'criminal' and the related legislative scheme permits criminal proceedings to be brought against the person for substantially the same conduct, the statement of compatibility should explain how this is consistent with article 14(7) of the ICCPR.

Other criminal process guarantees in articles 14 and 15 may also be relevant to civil penalties that are viewed as 'criminal', and should be addressed in the statement of compatibility where appropriate.
Parliamentary Joint Committee on Human Rights PO Box 6100 Parliament House Canberra ACT 2600 Phone: 02 6277 3823 Fax: 02 6277 5767 E-mail: human.rights@aph.gov.au Internet: http://www.aph.gov.au/joint_humanrights 5