House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts the Honourable Paul Fletcher MP)

Statement of Compatibility with Human Rights

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

Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020

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.

Schedule 1 - Object

Schedule 1 of the Bill amends the object of the Act to clarify the object of the Act and streamline the sub-objects. The Bill establishes that the primary object of the Act is to promote the long-term public interest derived from the management of the spectrum. The Bill provides three sub-objects that are of equal importance that are necessary to achieve the object of the Act.

Schedule 1 engages the right to an adequate standard of living and to the continuous improvement of living conditions as contained in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), insofar as it is reforms and modernises the legislative framework necessary to enable the realisation of the social and economic benefits possible from the use of spectrum in a rapidly-changing technological landscape.

Human rights implications and conclusion

This Schedule is compatible with Article 11(1) of the ICESCR.

Schedule 2 - Policy statements and work programs

Schedule 2 of the Bill provides for the Minister to issue Ministerial policy statements (MPS) which ACMA must have regard to in exercising its spectrum management functions and powers. The power to make an MPS is a new mechanism that is intended to enable the Minister to provide high-level policy guidance to ACMA about the Government's policies for spectrum management. This mechanism complements the reduction in the Minister's process-based regulatory decision-making functions, and the overall more strategic role conferred on the Minister by the amendments in this Bill.

The Schedule requires ACMA to publish an annual work program covering a minimum five-year period, setting out a detailed work program for the upcoming financial year and an outlook over the five-year time horizon. ACMA would be required to consult the Minister and undertake any other consultation that it considered appropriate and reasonable to undertake before finalising an annual work program.

Human rights implications and conclusion

This Schedule does not engage any applicable human rights.

Schedule 3 - Licences

Schedule 3 relates to the licensing of spectrum, including allocation processes, re-allocation processes, the renewal of spectrum licences and apparatus licences, and the duration of licences.

The Schedule proposes amendments to the Act that would give ACMA greater responsibility over day-to-day allocation and re-allocation processes, while retaining the Minister's power to direct ACMA when appropriate. Other key changes proposed by this Schedule to the Bill aim to improve processes and methods include:

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the repeal of designation and conversion processes;

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a new power to directly allocate licences;

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changes to allocation limits in price-based allocation processes;

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simplifying the process for re-allocating encumbered spectrum.

The following discussion highlights provisions in the Schedule that deal with acts or omissions that may affect an individual but do not amount to engaging applicable human rights.

ACMA may set allocation limits on a part or the aggregate of parts of the spectrum that may be used by a person (or group of persons) as a result of an allocation process, taking into account the whole of a potential licensee's spectrum holdings. ACMA may also be able to have regard to aggregate spectrum holdings when deciding whether or not to issue or renew an apparatus licence outside of section 106 allocation processes.

ACMA may issue, vary and revoke spectrum re-allocation declarations while providing existing spectrum users with appropriate notice and opportunities for input.

As there is no presumption that a further licence will be issued, the renewal statement will serve to clarify from the moment of issuing the initial licence whether no further licence will be issued, whether a further licence may be issued at the discretion of ACMA or whether there are any conditions that will need to be met in order for ACMA to consider issuing a further licence.

ACMA has the discretion to offer licensees a further licence with different conditions to those in the licence it succeeds, or for a period of time different to that in the licensee's application. If an application is refused or if ACMA decides to issue a further licence but on different conditions, ACMA must issue a notice of decision and a statement of reasons to the applicant, providing transparency. Both these decisions will also be reviewable.

Human rights implications and conclusion

This Schedule does not engage any applicable human rights.

Schedule 4 - Equipment

Schedule 4 confers certain powers on ACMA to make equipment rules that prescribe standards of equipment and impose obligations or prohibitions in relation to equipment. This extends to the operation, supply, offer to supply, possession and/or importation of equipment, labelling and use of protected symbols. The Schedule also gives ACMA the power to issue, vary, revoke or cancel permits, subject permits to conditions and make the breach of a permit an offence, contravention of the Act or both and subject to the respective criminal penalty or civil penalty. Exceptions apply to certain contraventions.

The Schedule gives ACMA the power to impose interim or permanent bans on equipment on parties involved in the operation, supply, offer to supply, possession and/or importation of the equipment. ACMA also has the power to require the mandatory recall of equipment, and mandatory notification to ACMA in the instance of voluntary recalls of equipment.

The Schedule creates offences and penalties in relation to non-compliance with bans and recalls on equipment. In applying these offences and civil penalties, the Schedule makes presumptions that a person to whom banned equipment is supplied or an offer is made to supply banned equipment intends to operate the equipment.

The Schedule creates an offence and a civil penalty of 500 penalty units (PU) respectively for the contravention of a prohibition or obligation other than a record keeping requirement or permit condition. Contravention of the obligation to keep or retain records attracts a civil penalty of 30 PU while misuse of a protected symbol has a civil penalty of 30 PU.

Non-compliance with an interim ban is subject to a civil penalty of 200 PU while contravention of a permanent ban is an offence with a penalty of 2 years imprisonment and/or a 1000 PU and a contravention attracting a civil penalty of 1000 PU. Non-compliance with a recall notice is an offence and a contravention each having a penalty of 1000 PU (maximum civil penalty for each day that a contravention continues is 10% of the maximum civil penalty).

The Schedule also sets out a series of contraventions regarding labelling of 100 PU or less.

None of the offences in the Schedule are of strict liability.

The Schedule amends the Act to give a person that has suffered loss or damage an action for damages against a person that has failed to comply with an interim or permanent ban in accordance with the amendment.

Human rights implications and conclusion

Schedule 4 engages the right to the enjoyment of the highest attainable standard of physical and mental health as set out in Article 12 of the ICESCR; and the right to a presumption of innocence and a fair trial/fair hearing - Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

Article 12(1) of the ICESCR promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health. This includes the improvement of all aspects of environmental and industrial hygiene (Article 12(2)(b)). While the ICESCR contains no definition of health, the UN Committee on Economic Social and Cultural Rights ('the Committee') provides further guidance, stating that the right to health is not to be understood as a right to be healthy. Accordingly the right also contains entitlements, which include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The Committee's definition is relevant to this Bill, because while the Bill does not explicitly relate to the right of a person to enjoy the highest attainable standard of physical and mental health, the amendments to the regulatory scheme being established in the Bill provide a system of checks and balances necessary to protect human health. The equipment rules are directed towards achieving several objectives including protecting the health or safety of individuals from any adverse effect likely to be attributable to radio emissions resulting from a reasonably foreseeable use (including a misuse) of radiocommunications transmitters.

The right to the presumption of innocence is one of the guarantees in relation to legal proceedings contained in article 14. It is also a fundamental principle of the common law. The other guarantees are the right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate.

The UN Human Rights Committee has stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

The Schedule creates offences and civil contraventions that contains a presumption and put an evidential burden on the accused to rebut the presumption. Under international human rights law, a reverse onus provision will not necessarily violate the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision would be important in determining its justification. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.

In this instance, it would be difficult for the prosecution to establish the intention of a person supplied or offered to be supplied with banned equipment in terms of whether or not they intend to operate the equipment in circumstances where the equipment is the subject of an interim or permanent ban for reasons permitted under the proposed legislation. The proposed legislation allows the defendant to rebut the presumption by adducing or pointing to evidence that suggests a reasonable possibility that the presumption does not apply.

Conclusion

This Schedule is compatible with the human right it engages, the measures in the amendments do not unnecessarily, unreasonably or disproportionately limit, the right to the enjoyment of the highest attainable standard of physical and mental health, the presumption of innocence and the right to a fair trial.

Schedule 5 - Accreditation

Schedule 5 expands ACMA's power to devolve functions to accredited persons. The Schedule allows ACMA to develop accreditation rules, determine the conditions of accreditation and the processes and necessary qualifications to be applied in the granting of different categories of accreditation.

Human rights implications and conclusion

Schedule 5 engages the right to work which includes the right of a person to gain their living by work which he or she freely chooses or accepts. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the ICESCR. Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review.

The accreditation rules may provide for the qualifications and other requirements required before a person can be given the relevant kind of accreditation. To the extent that these requirements restrict the right to work (if at all), they are consistent with the statement of the UN Committee.

Schedule 6 - Compliance and enforcement

Schedule 6 modernises the compliance monitoring and enforcement tools available to ACMA. The Schedule triggers the regulatory powers of Part 2 and Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) including the ability to:

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issue infringement notices

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seek an injunction or other civil penalties

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accept an enforceable undertaking

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give a remedial direction

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issue public warning notices about contraventions of certain provisions of the Act, when it is in the public interest to do so

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use forfeiture notices to seek the voluntary surrender and forfeiture of things involved in the contravention of provisions of the Act

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refer matters for prosecution to seek conviction and criminal penalties

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suspend and/or cancelling licences

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withdraw accreditation and authorisations.

The Bill also provides inspectors appointed under the Act with the following powers in addition to those made available by the triggering of Parts 2 and 3 of the Regulatory Powers Act:

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the power to give directions to a holder of an apparatus licence or a spectrum licence in relation to managing interference with radiocommunications;

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the power to enter premises to adjust transmitters in emergencies;

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the power to direct a person to operate a transmitter;

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the power to require a person to produce an apparatus licence, a spectrum licence, a third party authorisation, a certificate or a permit;

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the power to require a person to produce a copy of a record of an authorisation; and

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the power to require a person to produce a record the retention of which is required by the equipment rules.

The additional regulatory powers and tools give ACMA greater flexibility to address instances of non-compliance and reduce the prevalence of equipment that can be used to cause interference, while also removing the administrative and financial burden of having to conduct lengthy criminal investigations for potentially minor breaches. This will more effectively protect the rights of spectrum users, as well as reduce the need for more coercive enforcement powers to be used in situations where this is not a proportionate response. Criminal penalties and sanctions will remain available in a limited number of cases, where this is justified by the seriousness of the potential breach. Attachment A is table of the offences and penalties that would be available under the Act.

Human rights implications

Schedule 6 engages the following rights:

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the right to a fair trial/fair hearing - Article 14 of the ICCPR;

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the right to the presumption of innocence - Article 14 (2) of the ICCPR;

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the right to be free from self-incrimination - Article 14(3) of the ICCPR; and

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the right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted - Article 14 (7) of the ICCPR.

Right to a fair trial / hearing

Article 14 of the ICCPR guarantees equality before courts and tribunals, and, in the determination of criminal charges, or any suit at law, the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law. This guarantee includes respect for the principle of `equality of arms', which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. Those charged with a criminal offence have the rights set out in Article 14(2) to (7), including the presumption of innocence and the guarantees set out in Article 14(2). Under certain circumstances, a civil penalty can be characterised as 'criminal' for the purposes of the application of Article 14.

New civil penalty provisions proposed to be inserted by Schedule 6 of the Bill provide for civil penalty amounts of 300 PU for contravention of the prohibition to operate or possess a radiocommunications transmitter - a civil penalty of 30 PU applies for the same action in relation to equipment other than a radiocommunications transmitter.

The civil penalty provisions in the Bill are provided as disciplinary alternatives to the punitive or deterrent criminal offences a maximum of 2 years imprisonment and a fine of 1,500 penalty units relating to prohibited conduct for a radiocommunications transmitter. Civil penalties will also enable an effective disciplinary approach to dealing with non-compliance by corporations.

While a criminal penalty is deterrent or punitive, the objectives of these civil penalties are regulatory or disciplinary in nature and apply to a class of persons, licence holders, who can reasonably be expected to be aware of their obligations under the legislation and who have voluntarily sought the approval of the Commonwealth to engage in an activity that is regulated under very clear conditions. Accordingly, the civil penalty provisions in the Bill should not be considered 'criminal' for the purposes of human rights law.

In addition, there are other levels of regulatory actions that can be taken before escalating to civil penalties, including imposition of additional conditions or varying the activities that can be undertaken under the licence, the issuing of directions, giving of infringement notices, the accepting of enforceable undertakings and, if necessary, the revocation of a permit or the licence.

The civil penalty amount of 300 PU is considered justified given the nature of the conduct and will provide the appropriate incentive for those regulated under the Act to comply with regulatory requirements.

Other civil penalty provisions proposed to be inserted by Schedule 6 involve failure by a licence holder to comply with a licence condition other than a record keeping or administrative requirement (100 PU and 20 PU respectively), a remedial direction (50 PU) and a direction relating to authorised persons (30 PU) or notifying authorised persons (20 PU). The Schedule creates a civil penalty of 500 PU for causing interference, disruption or the disturbance of radiocommunications and repeals the existing criminal penalty with a civil penalty of 500 PU for an unauthorised transmission from a foreign vessel in Australia.

The cumulative effect of the nature and severity of the civil penalties in the Bill is unlikely to be considered 'criminal' for the purposes of human rights law.

Right to the presumption of innocence

As stated previously, Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.

When 'strict liability' applies to an offence, the prosecution is only required to prove the physical elements of an offence, not the fault elements, beyond reasonable doubt in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code).

Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault.

Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence.

The Bill proposes to repeal all strict liability offences in the Act.

Right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person cannot be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination, which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits but any such limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.

This Bill limits the right for an individual to be free from self-incrimination where the exercise of this right could seriously undermine the effectiveness of the regulatory scheme and prevent the collection of evidence.

Section 284K in the Schedule abrogates the privilege by providing that a person is not excused from providing information sought under the general powers of inspectors in section 284J on the ground that the production of the document might tend to incriminate the individual in relation to an offence.

Without the abrogation of the right to be free from self-incrimination, the regulatory scheme could be seriously compromised. The public benefit of its removal outweighs the loss of personal liberty.

These limitations of the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR are permissible as protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted

Article 14(7) of the ICCPR prohibits an individual from being tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each country-commonly known as the prohibition on double jeopardy. This prohibition is limited to proceedings relating to a criminal charge, however it is noted that whether a proceeding is civil or relates to a criminal charge under Article 14(7) is determined by the substance and the effect of the proceedings themselves, rather than their label under domestic law.

The right not to be twice tried or punished for the same offence may be engaged as the Bill permits both criminal and 'civil' proceedings (considered criminal for the purposes of international human rights law) to be brought against a person for the same conduct. However, the commencement and conduct of such proceedings is subject to the Regulatory Powers Act.

Schedule 6 provides that criminal proceedings may be commenced against a person after they have been ordered to pay a civil penalty for the same conduct. However, civil proceedings for the same conduct for which criminal proceedings have commenced are stayed and can only be re-instated if the person is not convicted.

Conclusion

This Schedule is compatible with the human right it engages, the measures in the amendments do not unnecessarily, unreasonably or disproportionately limit, the following rights:

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the right to a fair trial/fair hearing - Article 14 of the International Covenant on Civil and Political Rights (ICCPR);

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the right to the presumption of innocence - Article 14 (2) of the ICCPR;

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the right to be free from self-incrimination - Article 14(3) of the ICCPR; and

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the right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted - Article 14 (7) of the ICCPR.

Schedule 7 - Information gathering powers

Schedule 7 of the Bill inserts Part 5.5A into the Act to confer on ACMA certain information-gathering powers, under which it may require a person to provide information, or produce a document, that relates to the supply or operation of radiocommunications devices and compliance or non-compliance with the conditions of licences. These information gathering powers also enable ACMA to seek information from a person that operates a radiocommunications device under a current licence or a licence that may be issued in the future, to assist ACMA in its spectrum management functions associated with planning the future use of the spectrum.

Human rights implications

Schedule 7 engages the right to be free from self-incrimination - Article 14(3) of the ICCPR.

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person cannot be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination, which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits but any such limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.

This Bill limits the right for an individual to be free from self-incrimination where the exercise of this right could seriously undermine the effectiveness of the regulatory scheme and prevent the collection of evidence.

Section 284W in the Schedule abrogates the privilege by providing that a person is not excused from providing information sought under the general powers of inspectors in section 284S on the ground that the production of the document might tend to incriminate the individual in relation to an offence.

Without the abrogation of the right to be free from self-incrimination, the regulatory scheme could be seriously compromised. The public benefit of its removal outweighs the loss of personal liberty.

These limitations of the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR are permissible as protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Conclusion

This Schedule is compatible with the human right it engages, as the measures in the amendments do not unnecessarily, unreasonably or disproportionately limit, the right to be free from self-incrimination.

Schedule 8 - Miscellaneous

This Schedule includes amendments that apply across the Act, such as ACMA's powers to grant exemptions from penalty provisions, exemptions for Defence related activities and ACMA's ability to use computer assisted decision making, particularly in the renewal of licences. This schedule also extends the exemptions afforded to defence related activities to reflect current operational requirements.

Human rights implications and conclusion

This Schedule does not engage any applicable human rights.

Schedule 9 and Schedule 10- Datacasting Transmitter Licences and Public Inquiries

These Schedules of the Bill repeal provisions that have not been used to date.

Human rights implications and conclusion

These Schedules do not engage any applicable human rights.

Schedule 11 - Duration of Licences

To create greater flexibility across spectrum licences and apparatus licences, the maximum duration for both spectrum licences and apparatus licences will be extended to 20 years. This will help balance the benefits that longer licences can present in some cases (by providing greater certainty and encouraging innovation and investment) with the need to retain flexibility in spectrum management processes (such as by issuing shorter duration licences where appropriate) in order to adapt to changing circumstances.

Human rights implications and conclusion

This Schedule does not engage any applicable human rights.

Conclusion

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.