House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Revenue and Financial Services, Minister for Women and Minister Assisting the Prime Minister for the Public Service, the Hon Kelly O'Dwyer MP)

Statement of Compatibility with Human Rights

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

Illicit tobacco offences

1.249 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

1.250 This Bill:

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creates a new tobacco offence regime that provides a comprehensive set of offences that can be applied to illicit tobacco that:

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has been domestically manufactured or produced; or

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for which the origin of production or manufacturing is unknown or uncertain;

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creates new offences for possession of equipment for producing or manufacturing illicit tobacco;

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set penalties under this regime at a level that deters illegal activity;

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confirms that tobacco for which the origin of production or manufacturing is unknown or uncertain can be seized; and

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defines tobacco to align the meaning for excise and excise-equivalent customs duty purposes so that the amount of duty on dutiable products is determined in a consistent manner.

Human rights implications

1.251 The Government is committed to reducing the harmful effects of tobacco consumption. This Bill is in line with the Tobacco Strategy 2012-2018 (endorsed by all Australian Health Ministers) to reduce the affordability of tobacco products, and with the World Health Organisation's Framework Convention on Tobacco Control which commits nations to implement policies on tobacco prices and tax increases.

1.252 This Bill engages the following human rights:

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the right to security of the person and freedom from arbitrary detention; and

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fair trial and fair hearing rights.

Right to security of the person and freedom from arbitrary detention

1.253 Article 9 of the International Covenant on Civil and Political Rights (ICCPR) requires that in the determination of any criminal charge that no person shall be subjected to arbitrary arrest or detention. Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

1.254 This right requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary. In all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought.

1.255 This right is engaged by the application of possible prison sentences that may be imposed by a court under the new sections 308-10, 308-15, 308-20, 308-25, 308-30, 308-35, 308-40, 308-45 308-50, 308-110, 308-115, 308-120, 308-125, 308-130, 308-135, 308-205 and 308-210 in Schedule 1 to the TAA 1953. The penalties imposed by this Bill, and determined by a court, can include prison sentences or fines or both. This promotes freedom from arbitrary detention through encouraging proportionate sentencing by preserving judicial discretion in sentencing to take into account offenders' particular circumstances. In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

1.256 Moreover, the penalties do not impose a minimum non-parole period on offenders. This will preserve a court's discretion in sentencing, and will help ensure that custodial sentences imposed by courts are proportionate and able to take into account the particular circumstances of the offence and the offender.

1.257 The inclusion of prison sentences is aimed at the legitimate objective of ensuring offenders receive sentences that reflect the seriousness of their offending.

1.258 This measure does not seek to impact on the treatment of people in detention. It merely prescribes penalties which may include prison sentences.

1.259 There are clear and serious social and systemic harms associated with illicit tobacco. There have been excise laws and customs laws for some time designed to deal with these offences which carried penalties with them. However, they were difficult to apply and could not be applied in all cases. This Bill provides for new offences which overcome these shortcomings.

1.260 The possible penalties for dealing with illicit tobacco are 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 to achieving reductions in the illicit tobacco trade.

Fair trial and fair hearing rights

1.261 Article 14(1) of the ICCPR requires that in the determination of any criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

1.262 The determination of any charges brought against a person under these provisions will be heard by Australian courts, which are competent, independent, and impartial tribunals that will ensure that defendants receive a fair hearing.

1.263 The right to a fair and public criminal trial or a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings. Fair trial and fair hearing rights include:

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that all persons are equal before courts and tribunals; and

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the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

1.264 Articles 14(2) to 14(7) of the ICCPR establish a series of minimum guarantees, including that a person is informed promptly of the charge, has adequate time and facilities to prepare a defence and communicate with counsel, be tried without undue delay, be tried in person, receives legal assistance, is able to cross-examine witnesses and have the assistance of an interpreter and is able to have a conviction and sentence reviewed by a higher court. These protections will apply to all prosecutions under illicit tobacco offences.

1.265 The offences in the Bill are subject to double jeopardy safeguards as required by Article 14(7) of the ICCPR. This Bill ensures that conduct occurring before the start date of the Bill cannot be subject to penalties under this Bill. Also, where conviction or acquittal has been secured in another jurisdiction for the conduct constituting the offence, that person cannot be convicted of an offence against the sections as amended in respect of that conduct.

1.266 On this basis, these offences are consistent with the rights to minimum guarantees in criminal proceedings.

Conclusion

1.267 Schedule 1 to the Bill is compatible with applicable 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 to improve the operability of illicit tobacco offences and promote the intention of the Criminal Code.