For the past few years, the Institute of Public Affairs has produced an ‘audit’ of Federal legislation to determine the extent to which ‘fundamental legal rights’ are breached. The ‘fundamental legal rights’, according to the Institute of Public Affairs, are:
- The presumption of innocence and the burden of proof;
- Natural justice;
- Right to silence; and
- Privilege against self-incrimination.
If that seems a little bit thin, you’d not be wrong. The thinness of its scope is exacerbated by the ‘research method’: taking all the legislation passed by Parliament in 2017, pressing ‘CTRL +F’, and searching for key phrases like ‘bears a legal burden’. The result is the very surprising claim that trade and commerce legislation and taxation legislation are the two areas that breach ‘fundamental legal rights’ the most often — coincidentally, the two ares of legislation that regulate the wealthy.
The ‘research method’ also results in the surprising conclusion that both statutory defences and notes which indicate an evidential burden are breaches of fundamental legal rights.
So a clarifying note was inserted into s 535 of the Fair Work Act 2009 that says, in a nutshell, ‘Hey, if you breach this section, look at s 557C for the consequences.’ But the drafters happened to use the words ‘bear the burden of disproving’ and thus got pinged under the audit. So the legislation remained the same, but the clarifying note has resulted in a breach of ‘fundamental legal rights’.
Let’s look at that example more closely. So s 535 is about employer obligations to keep employment records. Employment law is in no way shape or form my thing, but it seems intuitively sensible that the law would require employers to keep employment records. Here are the relevant subsections:
(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2) The records must:
(a) if a form is prescribed by the regulations–be in that form; and
(b) include any information prescribed by the regulations.
(3) The regulations may provide for the inspection of those records.
That all seems fairly sane. The clarifying note states:
Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.
So this clarifying note was counted as a breach, and s 557C (which was inserted into the Act this year) was counted as a separate breach. A quick look at s 557C states that (inter alia), if an allegation is made that the employer didn’t keep records, then the employer has the evidential burden of disproving the allegation. Further, this burden doesn’t exist if the employer has a reasonable excuse as to why the records don’t exist.
We might disagree about how reasonable it is to shift a burden of disproving a lack of something (I think this is fairly reasonable). What we wouldn’t agree with is that these are two separate ‘breaches’ of a ‘fundamental legal right’. The IPA’s sloppy method (key word searching) means that the substance of the legislation is ignored.
I’m not a tax law person either. I’d rather gnaw my own arms off. But what I do know, by just looking at the Taxation Administration Act 1953, is that the Act is structured into 10 Parts, and those Parts being separated into up to six divisions. It therefore came as a surprise to discover the IPA believed there was a secret ‘Division 145’ that had been inserted into the Act that put upon the accused a ‘burden of disproving’ some allegation or other.
Morgan Begg, the IPA Research Fellow who wrote this audit, believes that the offending Division 145 was inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017. But that Act does not amend the Taxation Administration Act 1953 at all.
Again, I’m not a taxation lawyer, but it’s possible that old mate Morgs is talking about something in a schedule somewhere. A quick search of the Taxation Administration Act 1953 brings up Division 145 in the Schedule which is about Diverted Profits Tax (no idea). It points to s 14ZZO that appears to provide an opportunity to object to a taxation decision of some kind. If you object to the decision, the burden shifts to you to demonstrate why your objection should be upheld which seems… right? If I’m reading this correctly, you have the burden of explaining why you’re objecting.
That might not be clear. You’ve got through an administrative process to determine how much tax you owe of a particular kind. Then, if you’re unhappy with this outcome, s 14ZZO gives you an opportunity to object to a higher power by letting you prove how much you think you owe. Framed differently, if this section did not exist, you’d have fewer rights to reduce your taxation liability. So how can a section that gives you a right to defend yourself against a tax debt be a breach of a fundamental legal right? It makes utterly no sense.
The ‘right to silence’ analysis is even more bizarre. Many Acts will stipulate that you are required to comply with notices issued by various authorities. If you don’t comply with those notices, there are often legal consequences stipulated in the Act. The audit searches for the phrase ‘fails to comply’ and then pings every instance of this kind. What a failure to comply with a rectification notice has to do with the right to silence is anybody’s guess.
The audit is weird and its conclusions are, frankly, stupid. If the purpose of think tanks is to inform public debate — a purpose which appears to justify its Deductible Gift Recipient status — we should be concerned that its contributions are so poorly informed. Think what you like about the merits of new provisions in the Criminal Code and the Migration Act, but these seem intuitively to be out of alignment with popular conceptions of civil liberties. Of course, I think that those intuitions are incorrect, but I think they’re more worthy of public debate (as I argued in the Guardian about the anti-bikie laws) than half baked ‘audits’ based on keyword searches through legislation. This ‘audit’ is not a good contribution to public debate. The presentation of information is confused and confusing, and there is a complete lack of analysis supporting the findings.