12.01.2016

Further consideration or review

1.81     A range of Commonwealth laws appear to warrant further consideration or review. Some of these laws might be reviewed by a parliamentary committee, a government department, or a body such as the INSLM or the ALRC itself. Others may simply warrant reconsideration by government, given their effect on traditional rights and freedoms.

Freedom of speech

  • Racial Discrimination Act 1975 (Cth) pt IIA—review in conjunction with consideration of anti-vilification laws more generally.

  • Legislative provisions that protect the processes of tribunals, commissions of inquiry and regulators, for example Veterans’ Entitlements Act 1986 (Cth) s 170.

  • Secrecy offences, including the general secrecy offences in Crimes Act 1914 (Cth) ss 70, 79.

  • Criminal Code s 80.2C (advocating terrorism), ss 102.1, 102.3, 102.5, 102.7 (prescribed terrorist organisations), s 105.41 (preventative detention orders)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

  • Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) s 35P (special intelligence operations)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

Freedom of association and assembly

  • Criminal Code s 102.8, divs 104–105 (control orders and preventative detention orders), s 119 (foreign incursions and recruitment)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

  • Migration Act s 501 (character test).

Freedom of movement

  • Criminal Code divs 104–105 (control orders and preventative detention orders), s 119 (declared area offences)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

  • Bankruptcy Act 1966 (Cth) s 77, which provides that a bankrupt person must automatically give their passport to the trustee in bankruptcy.

Fair trial

  • Uniform Evidence Actspt 3.10 (client legal privilege and a privilege for religious confessions without exceptions for defendants seeking to adduce evidence in support of their defence).

Burden of proof

  • Criminal Code deeming provisions in relation to the fault elements for drug offences, for example Criminal Code s 302.5.

  • Taxation Administration Act 1953 (Cth) s 8Y, in relation to directors’ liability for taxation offences committed by a corporation.

Strict or absolute liability

  • Legislative provisions that provide for strict and absolute liability in corporations law and prudential and environmental regulation, for example, Corporations Act 2001 (Cth) s 588G.

  • Legislative provisions that provide for strict liability in relation to commercial scale copyright infringement offences under the Copyright Act 1968 (Cth)—review by the Productivity Commission as part of its current review into intellectual property arrangements.

  • Criminal Code ss 102.5, 102.8 (associating with a terrorist organisation), ss 119.1, 119.2 (declared area offences)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

  • ASIO Act s 34ZS (disclosure of operational information concerning an ASIO warrant)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

  • Charter of the United Nations Act 1945 (Cth) ss 20–21 (freezable assets or giving freezable assets to a proscribed person or entity)—review by INSLM and the Intelligence Committee as part of their ongoing roles.

Privilege against self-incrimination

  • Legislative provisions that abrogate the privilege against self-incrimination, particularly those that provide only use immunity, for example Australian Crime Commission Act 2002 (Cth) s 30.

  • Taxation Administration Act 1953 (Cth) sch 1 s 353–10, which abrogates the privilege against self-incrimination and provides no immunity.

Legal professional privilege

  • Criminal Code s 105.38(1), which requires contact between a lawyer and a detained person to be capable of being monitored.

  • ASIO Act s 34ZQ(2), which requires contact between a lawyer and a detained person to be capable of being monitored.

Retrospective laws

  • Migration Act s 228B, which defines the scope of the offence of people smuggling.

  • Income Tax Assessment Act 1997 (Cth) div 13, regarding transfer pricing.

  • Migration Act s 45AA and Migration Regulations 1994 (Cth) reg 2.08F, which converted applications for permanent protection visas into temporary protection visas.

Procedural fairness

  • Migration Act s 501(3A) and associated provisions relating to the mandatory cancellation of visas on character grounds;

  • Migration Act pt 7AA (fast track review process for decisions to refuse protection visas).

Judicial review

  • Privative clauses that restrict access to judicial review, for example Migration Act s 474.

Property rights

  • Proceeds of Crime Act 2002 (Cth)—ongoing scrutiny by the Parliamentary Joint Committee on Law Enforcement and, in due course, by a further independent review.

  • EPBC Act—as part of the next scheduled independent review.

  • Water Act—in due course, by a further independent review.