Helen Coonan (NSW, Liberal Party) Share this | Link to this | Hansard source

I present the fourth report of 2009 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 4 of 2008, dated 17 March 2010, and move:

That the Senate take note of the document.

In tabling the committee’s Alert Digest No. 4 of 2010 and the fourth report of 2010, I draw the Senate’s attention to some important provisions of the Personal Property Securities (Corporations and Other Amendments) Bill 2010 and of the Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010. The Personal Property Securities (Corporations and Other Amendments) Bill 2010 is related to the personal property securities acts passed last year to implement the area of major reform.

In this bill there are a number of provisions which raise issues of concern for the Scrutiny of Bills Committee in relation to constructive knowledge and shifting the onus of proof to a defendant to prove his or her state of knowledge of relevant matters. The statutory imputation of knowledge to a person or entity, or ‘constructive knowledge’ is an area of concern to the committee because the standard of knowledge being applied for legal purposes is necessarily different from the person’s actual knowledge.

The committee agrees that it may be an appropriate standard in some circumstances so that a defendant cannot avoid liability by wilfully remaining ignorant of relevant information, but in order to avoid trespassing unduly on personal rights and liberties the committee does expect that the approach is taken only in limited circumstances and that a full justification is provided in the accompanying explanatory memorandum.

An additional burden is placed on a defendant when the onus in relation to constructive knowledge is shifted to the defendant by requiring him or her to prove that property was acquired without actual or constructive knowledge.

The provisions of concern include schedule 1, part 9, proposed subsections 588FP(7)(b) and 588FP(9), which relate to preventing a company granting security interests to persons associated with the company. The explanatory memorandum provides a limited explanation of the effect of these provisions, but there does not appear to be a clear justification for the use of constructive knowledge in these subsections.

The committee appreciates that this is complex legislation—very arcane in some respects—and not a matter that I as the chair of the committee would normally raise, but I do so today because it does relate to a national scheme. We consider that these circumstances make it especially important to ensure that all provisions are appropriate and that they are adequately explained. This is the very substance of what this very committee is about. Therefore, the committee will seek the Attorney-General’s advice about the need and justification for each instance of constructive knowledge in this bill.

Other areas of interest to the Scrutiny of Bills Committee arise from the Transport Security Legislation Amendment (2010 Measures No.1) Bill 2010. There are a number of provisions in this bill that raise concern because they may trespass unduly on personal rights and liberties. These include items 17, 18 and 19 of the bill, which relate to extending the existing ability of maritime security inspectors to take photos on board a security regulated ship and on a security regulated offshore facility. The new power provides for the ability to make any still or moving image or any recording—for example, a digital image or video—of equipment on the ship or offshore facility.

In addition, item 19 inserts additional scope to this power so that a maritime security inspector can also make any still or moving image or any recording of equipment in a place, vehicle or vessel under the control of a regulated maritime industry participant.

The committee recognises that there can be sound reasons for extending the powers of security personnel, but expects that proposals to do so fully articulate the justification for the approach and ensure that appropriate safeguards and oversight are in place. In this case, the explanatory memorandum states at page 10 that the provisions ‘modernise the options for recording media’, but there is no detail about whether this is for the convenience of security inspectors or is substantively warranted, what safeguards are in place to prevent the misuse of the power and whether the use of these powers can be audited generally or individually reviewed if a person has a complaint. The committee is therefore concerned that these provisions may trespass unduly on personal rights and liberties and therefore will seek the minister’s advice about the justification and need for them.

Another area of similar concern in the same bill relates to the new powers to appoint security assessment inspectors. The explanatory memorandum accompanying the bill explains that appointed security assessment inspectors will be able to survey the extant security environment at a regulated maritime site and examine the effectiveness of current security policies; this will enable timely responses to changing and emerging threats to be developed to identify systemic policy and operational weaknesses. Currently the act does not have any explicit powers of entry into security regulated areas other than for departmental officers and law enforcement officers.

Proposed section 145E specifies the powers of an inspector, which include the ability to enter and inspect an area under the control of a maritime industry participant, to make any recordings of the area, observe the operating procedures and discuss them with an employee or another maritime participant. Proposed section 145F provides that powers may be exercised without notice at a security regulated port or otherwise after giving reasonable notice to the maritime participant. Subsection 145E(3) will provide that ‘a security assessment inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power’.

While the committee recognises the importance of ensuring that security measures are available and effective, it is also important to ensure that an appropriate balance is struck between the proposed action and any trespass on personal rights and that a full justification of the powers is included in the explanatory memorandum accompanying the bill.

I could go on to detail the report further. But, on a related note, as the Senate is aware, the committee has embarked on an enquiry into the future direction and role of the Scrutiny of Bills Committee. The committee has considered it appropriate to examine a number of matters, including what, if any, additional role the committee should undertake in relation to human rights obligations applying to the Commonwealth. It is particularly the consideration of whether the committee should augment its terms of reference by including consideration of human rights obligations applying to Commonwealth legislation that is exciting considerable interest.

The option of greater parliamentary scrutiny in relation to human rights by existing parliamentary committees—namely, the Standing Committee for the Scrutiny of Bills and the Standing Committee on Regulations and Ordinances, was raised in the National Human Rights Consultation, colloquially referred to as the Brennan report. It is interesting that 202 submissions to the consultation committee expressed support for greater parliamentary scrutiny in relation to human rights, and a number of them proposed that augmented powers be given to the Scrutiny of Bills Committee. Obviously, there are issues as to whether or not that would be appropriate and, indeed, whether or not that would be the preferred way to go. But the option of greater parliamentary scrutiny of human rights obligations is a matter that will be canvassed in the report, and no doubt, when we report to the Senate on 14 May, I think, I will be in a position to talk more fully about scrutiny from a human rights perspective. I commend the report.

Question agreed to.