7.2 Rights and liberties of individuals
7.2.1 Does the legislation make rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to
appropriate review?
Depending on the seriousness of a decision made in the exercise of administrative power and the consequences that follow, it is generally inappropriate to provide for administrative decision making in a Bill without stating criteria for making the decision and providing for a merits-based appeal from the decision. Occasionally, this may be a two-tiered system with an internal review of the original decision-maker's decision and a subsequent right of appeal to a court or tribunal. The decision-maker should be required to provide reasons for the decision, together with information on any review and appeal rights. (See also the Acts Interpretation Act 1954, s. 27B).
In relation to defining administrative power, other matters that the Scrutiny of Legislation Committee has monitored have included:
- the imposition of conditions on a licence or other statutory authority
- the imposition of suitability, eligibility and similar criteria for granting an appointment, place, position or other status
- the appropriate nature of a power to administratively grant an appointment, place, position or other status
- the appropriate nature of a power to give administrative directions generally or in unusual circumstances, for example, to persons and bodies ordinarily regarded as independent or to affect an established trust
- the limitation of the period within which prosecutions may be started for breaches of statutory duty.
In relation to appeals and reviews, other matters that the Scrutiny of Legislation Committee has monitored have included:
- the power to use a power peremptorily, that is, without first giving an opportunity to those affected by the power to express a view
- the reduction of existing rights of review or appeal, or the provision of review or appeal rights with less than the usual process
- the appropriateness of a review or appeal that is based on political, as opposed to administrative or judicial, accountability.
7.2.2 Is the legislation consistent with principles of natural justice?
The principles of natural justice are principles developed from the common law.
Right to be heard
The principles require that something should not be done to a person that will deprive the person of some right, interest, or legitimate expectation of a benefit, without the person being given an adequate opportunity to present the person's case to the decision-maker.
Matters that the Scrutiny Committee has monitored have included:
- the appropriateness of immediately suspending a person's licence without the person being heard
- a lack of consideration of the views of third parties, that is, persons whose rights may be affected by action taken under legislation against another person
- concealment of confidential information from a person who loses a legislative authority on the basis of the information.
Absence of bias
The decision-maker must be unbiased.
The overall test of whether a decision-maker is biased is whether the relevant circumstances would give rise, in the mind of a party or a fair-minded member of the public, to a reasonable apprehension or suspicion of a lack of impartiality on the part of the decision-maker.
For example, in the context of a legislative scheme conferring rights of appeal or review, the requirement to be unbiased will usually involve ensuring that the person who hears the review or appeal is separate from the original decision-maker.
Procedural fairness
The principles require procedural fairness, involving a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of the particular case.
The Scrutiny of Legislation Committee would be likely to have concerns about any process purporting to afford natural justice that is not transparent.
In relation to procedural fairness, other matters that the Scrutiny Committee has monitored have included whether a person who is the subject of the decision will be provided with:
- adequate notice of when any hearing will take place
- adequate notice of any allegation being considered
- adequate notice of any particular requirements of the decision-maker
- a reasonable opportunity to present the person's case and to respond to any adverse material of which the decision-maker has informed itself.
Whether the Scrutiny Committee considers that legal representation is required at any hearing depends on all the circumstances (Alert Digests 2002/1, pp. 21-22; 2001/8, pp. 18-20; and 2000/9, p. 6, para. 30).
7.2.3 Does the legislation allow the delegation of administrative power only in appropriate cases and to appropriate persons?
Generally, powers should be delegated only to appropriately qualified officers or employees of the administering department. This approach reflects the policy of the Scrutiny of Legislation Committee (see Policy No. 1 of 1996 in Alert Digest 1996/4, p. 5). The Acts Interpretation Act 1954, section 27A contains extensive provisions dealing with delegations.
Delegation to a person or body outside government is uncommon because, as noted by the Scrutiny of Legislation Committee, it 'potentially circumvents the traditional means of accountability usually applicable to the public sector' (Alert Digest 1997/9, p. 9). As also noted by the Scrutiny Committee, administrative decisions made within government are usually subject to accountability mechanisms such as those under the Freedom of Information Act 1992, the Judicial Review Act 1991, the Crime and Misconduct Act 2001 and the Ombudsman Act 2001.
The appropriateness of placing limitations on a delegation of a power depends on all the circumstances, including the extent of the power, how use of the power may affect the rights or legitimate expectations of others, and whether particular expertise or experience is needed to exercise the power properly.
A power of subdelegation requires careful consideration and may be inappropriate on some occasions (see Alert Digest 2002/6, p. 45, paras 6-7).
7.2.4 Does the legislation provide for the reversal of the onus of proof in criminal proceedings without adequate justification?
Generally, reversal of the onus of proof in criminal proceedings is opposed. However, justification for the reversal is sometimes found in situations where the matter that is the subject of proof by the defendant is peculiarly within the defendant's knowledge and would be extremely difficult, or very expensive, for the State to prove (Alert Digest 1997/2, p. 11).
Generally, for a reversal to be justified, the relevant fact must be something inherently impractical to test by alternative evidentiary means and the defendant would be particularly well positioned to disprove guilt.
A provision making a person guilty of an offence committed by someone else with whom the person is linked, and providing defences allowing the person to disprove connection with the offence, is an apparent reversal of onus of proof and must be justified. Common situations where these concerns arise are when executive officers of a corporation are taken to be guilty of offences committed by the corporation, or a corporation is taken to be guilty of offences committed by its executive officers.
A provision should not provide that something is conclusive evidence of a fact, without the highest justification. However, frequently a provision may facilitate the process of proving a fact by providing for a certificate or something else to be evidence (not conclusive) of a fact, giving a party affected an opportunity to challenge the fact.
7.2.5 Does the legislation confer power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer?
Power to enter premises should generally be permitted only with the occupier's consent or under a warrant issued by a judge or magistrate. Strict adherence to the principle may not be required if the premises are business premises operating under a licence. However, residential premises should not, without the highest justification, be entered except with the occupier's consent or under a warrant.
The Scrutiny of Legislation Committee examines powers of entry and can be expected to comment adversely if appropriate safeguards are not provided (see, for example, Alert Digest 1997/13, p. 19).
7.2.6 Does the legislation provide appropriate protection against selfincrimination?
This principle has as its source the common law rule that an individual accused of a criminal offence should not be obliged to incriminate himself or herself. In Sorby v Commonwealth (1983) 152 CLR 281 at 288, Gibbs CJ said:
It has been a firmly established rule of the common law, since the seventeenth century, that no individual can be compelled to incriminate himself (or herself). An individual may refuse to answer any question, or to produce any document or thing, if to do so 'may tend to bring him (or her) into the peril and possibility of being convicted as a criminal'.
In Alert Digest No. 13 of 1999 at page 31, the Scrutiny of Legislation Committee stated:
The committee's general view is that denial of the protection afforded by the self-incrimination rule is only potentially justifiable if:
- the questions posed concern matters that are peculiarly within the knowledge of the persons to whom they are directed, and would be difficult or impossible to establish by any alternative evidentiary means; and
- the Bill prohibits use of the information obtained in prosecutions against the person; and
- in order to secure this restriction on the use of the information obtained, the person should not be required to fulfil any conditions (such as formally claiming the right).
If provision is made for denying the privilege provided by the selfincrimination rule, provision also needs to be made to grant appropriate immunity against the use of information gained, directly or indirectly, from forced disclosure. This also means that the usefulness of a provision denying the privilege is substantially reduced because the evidence produced can not be used in a court.
Abrogating the privilege should be contemplated only when it is more important to know the facts leading to the contravention than to prosecute the contravention. This may be the case if knowledge will allow action to be taken that may save lives or prevent injury in the future.
7.2.7 Does the legislation adversely affect rights and liberties, or impose obligations, retrospectively?
Strong argument is required to justify an adverse affect on rights and liberties, or the imposition of obligations, retrospectively.
Whether a statutory provision is in fact retrospective can often be difficult to decide. For example, difficulties occur where the provisions of an Act apply to an event that comprises several components, some of which happened before the Act's commencement and some after.
For subordinate legislation, the Statutory Instruments Act 1992, section 32 provides for the commencement of a statutory instrument prospectively. Only section 34 provides otherwise. Section 34 allows a statutory instrument to expressly provide for beneficial retrospectivity, that is, retrospectivity that does not decrease a person's rights or impose liabilities on a person other than the State, a State authority or a local government. Subordinate legislation that purports to have an adverse affect can not be made without the authority of an Act.
The Scrutiny of Legislation Committee brings to the attention of Parliament all provisions in Bills that have effect retrospectively (see the Scrutiny Committee Annual Report 1997-1998, p. 7, para. 2.14).
The Scrutiny Committee generally opposes retrospective legislation but concedes that on occasions retrospective legislation that is curative and validating may be justified (see Alert Digest 1999/3, p. 25, paras 4.17-4.18).
7.2.8 Does the legislation confer immunity from proceeding or prosecution without adequate justification?
The Scrutiny of Legislation Committee has stated that one of the fundamental principles of the law is that everyone is equal before the law and should therefore be fully liable for one's acts or omissions (Alert Digest 1998/1, p. 5). However, it does recognise that the conferral of immunity is appropriate in certain situations.
The Scrutiny of Legislation Committee has not objected to immunity being conferred on the following:
- public servants implementing announced policy (Alert Digest 2001/4, p. 7, para. 16)
- persons acting judicially or in roles similar to or associated with judicial process (Alert Digests 2003/1, p. 3, paras 21-23; 2002/6, pp. 31-32, paras 35-44; 2002/6, p. 48, para. 28; 2002/3, p. 16, paras 15-18; and 1999/11, p. 11, paras 4.20-4.21)
- persons carrying out statutory functions (Alert Digest 1999/4, p. 16, paras 2.8-2.14)
- whistleblowers or persons making disclosures similar to whistleblowing (Alert Digests 2003/06, pp. 27-8, paras 34-41; and 2000/1, p. 5, paras 37-42)
- persons making disclosures to entities carrying out statutory functions (Alert Digest 2002/3, p. 4, paras 24-25).
The granting of immunity is most justifiable when there is a significant public interest in doing so. For example, the Scrutiny Committee has considered that diverting particular offenders from court proceedings for drug offences to processes that provided alternative ways of deterring the offending behaviour had sufficient regard to both the individual and the public interest (Alert Digest 2002/9, p. 1, para. 6).
7.2.9 Does the legislation provide for the compulsory acquisition of property only with fair compensation?
A legislatively authorised act of interference with a person's property must be accompanied by a right of compensation, unless there is a good reason (for example, the power to confiscate the profits of crime). An example of interference that should have an associated compensation provision is entry onto another's property with damage following.
7.2.10 Does the legislation have sufficient regard to Aboriginal tradition and Island custom?
An Act enacted after 28 November 1994 affects native title only so far as the Act expressly provides. An Act 'affects' native title if it extinguishes the native title rights and interests or it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise ( Acts Interpretation Act 1954, s. 13A).
For a detailed background to the original enactment of the 'Aboriginal tradition and Island custom' principle, see Alert Digest No. 1 of 1999, page 13.
The Scrutiny of Legislation Committee has monitored numerous matters relating to Aboriginal tradition and Island custom and to the interests of Aboriginal and Torres Strait Islander communities in general, including the need for legislation to take account of the following:
- the special nature of parental or kinship relationships in Aboriginal and Torres Strait Islander communities
- the special difficulties faced by Aboriginal and Torres Strait Islander people within formal court, tribunal or other process structures with decision-making powers
- the special needs of Aboriginal and Torres Strait Islander people within the criminal justice and corrective service systems.
7.2.11 Is the legislation unambiguous and drafted in a sufficiently clear and precise way?
The Scrutiny of Legislation Committee's expectations are that legislation should:
- be user friendly and accessible so ordinary Queenslanders can gain an understanding of the laws relating to a particular matter without having to refer to multiple Acts of Parliament
- contain coherent provisions, addressing foreseeable matters (See the Scrutiny Committee Annual Report 1998-1999, para. 2.14.)
- be drafted in a style that is as simple as possible, consistent with the nature of the subject matter
- be structured in a logical, user-friendly and accessible way
- contain provisions that are precisely drafted. (See the Scrutiny Committee Annual Report 1999-2000, para. 2.14.)
7.2.12 Does the legislation in all other respects have sufficient regard to the rights and liberties of individuals?
The Scrutiny of Legislation Committee has consistently taken the approach that the matters specifically listed in the Legislative Standards Act 1992, section 4(3) are not exhaustive of all matters relevant to an individual's rights and liberties.
The Scrutiny Committee takes an expansive approach in identifying rights and liberties. These include traditional common law rights, for example, the right of a landowner to the use and enjoyment of his or her land. They can also encompass, for example, rights that are only incompletely recognised at common law (for example, the right to privacy) and rights (especially human rights) that arise out of Australia's international treaty obligations. (See the Scrutiny Committee Annual Report 1998-1999, p. 6, para. 2.13).
The Scrutiny Committee has made comment about legislation in relation to the following broad principles:
- Abrogation of rights and liberties (in the broadest sense of those words) from any source must be justified, whether the rights and liberties are under the common law, statute law or otherwise.
- Restrictions on ordinary activities must be justified.
- Legislative intervention should be proportionate and relevant in relation to any issue dealt with under the legislation.
- Imposition of liability under legislation should provide for the following:
- adequate definition of the basis for the liability, with reasonable defences
- imposition of responsibility for the actions of others only with strong justification
- an appropriate and fair onus and standard of proof
- a single process for the liability, with all forms of double jeopardy being avoided as far as possible
- equality under the law for all persons responsible for the events from which the liability arises.
- Treatment of all persons affected by legislation should be reasonable and fair.
- There should be a balance within legislation between individual and community interests.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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