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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COURT SECURITY (CONSEQUENTIAL AMENDMENTS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Mark Dreyfus, QC MP)
COURT SECURITY (CONSEQUENTIAL AMENDMENTS) BILL 2013
GENERAL OUTLINE
The Court Security (Consequential Amendments) Bill 2013 (the Bill) contains amendments
to the Public Order (Protection of Persons and Property) Act 1971 (Public Order Act) arising
from the development of the Court Security Bill 2013.
The Court Security Bill provides a new framework for court security arrangements for federal
courts and tribunals. The new framework will meet the security needs of the modern court
environment by providing a range of powers for security officers and limited powers for
authorised court officers to ensure that court premises are safe and secure environments. The
Court Security Bill replaces the current security framework for federal courts and tribunals
under Part IIA of the Public Order Act. Therefore, a number of consequential amendments
are made to the Public Order Act.
The Bill repeals section 13A of the Public Order Act, which only applies to the Federal
Court, and removes the courts and tribunals covered by the Court Security Bill from the
application of overlap provisions of the Public Order Act. Regulation changes to remove
these courts and tribunals from the operation of Part IIA will also be made separately.
As a result of these proposed amendments, Part IIA of the Public Order Act will deal with
security of prescribed `investigative authorities', which have power to require the production
of documents or answering of questions. Currently the Integrity Commissioner and the
Australian Crime Commission are prescribed for this purpose.
FINANCIAL IMPACT
There will be no significant financial implications in implementing the Bill.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Court Security (Consequential Amendments) Bill 2013
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.
Overview of the Bill
The Bill 2013 contains amendments to the Public Order Act arising from the development of
the Court Security Bill 2013.
The Bill repeals Section 13A of the Public Order Act, which only applies to the Federal
Court, and removes the courts and tribunals covered by the Court Security Bill from the
application of overlap provisions of the Public Order Act.
Human Rights Implications
The Bill makes a number of relatively minor consequential amendments. The only applicable
right or freedom engaged is Article 14(2) of the International Covenant on Civil and Political
Rights. This Article protects the right of a person charged with a criminal offence `to be
presumed innocent until proved guilty according to law'.
The Bill puts a reverse evidential burden on a defendant in relation to whether an offence
under subsection 12(2) of the Public Order Act did not occur due to the premises being used
exclusively in connection with a court as defined under the Court Security Act. The reverse
burden provision is consistent with Commonwealth criminal law policy and the existing
provisions in the Public Order Act, and is reasonable, necessary and proportionate in the
circumstances. The penalties for the offences are low and the offences only impose an
evidential burden, as the prosecution must still disprove the matters beyond reasonable doubt
if the defendant discharges the evidential burden.
Conclusion
This Bill is compatible with human rights as to the extent that it may limit human rights,
those limitations are reasonable and proportionate.
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
1. This clause specifies that when the Bill is enacted, it is to be cited as the Court
Security (Consequential Amendments) Act 2013.
Clause 2 - Commencement
2. This clause contains a table setting out when the various parts of the Bill are to
commence. Proposed sections 1 to 3 of the Bill (and anything else in the Bill not otherwise
covered in the table) will commence on the day on which the Bill receives the Royal Assent.
Proposed Schedule 1 will commence at the same time as section 3 of the Court Security
Act 2013 (Court Security Act).
3. Section 3 of the Court Security Act is to commence on a day to be fixed by
proclamation. However, if the provisions do not commence within 6 months of the day on
which the Court Security Act receives the Royal Assent, they are to commence on the day
after the end of that period.
4. These commencement provisions allow time for the courts to put in place the
necessary practices and procedures for the exercise of security powers by officers under the
Bill, as well as time for the Government to amend the Public Order (Protection of Persons
and Property) Regulations 1999 to remove references to the courts and tribunals covered by
the Court Security Act.
Clause 3 - Schedule(s)
5. The Schedule to this Bill will amend the Public Order Act as set out in the Schedule.
Schedule 1 - Amendments
Public Order (Protection of Persons and Property) Act 1971
Item 1 - At the end of section 12
6. This item provides that the offences contained in section 12(2) of the Public Order
Act do not apply to Commonwealth premises being used exclusively in connection with a
court as defined in the Court Security Act. Relevant provisions of the Court Security Act will
instead apply. In particular, proposed section 42 of the Court Security Act provides that it is
an offence to unreasonably obstruct entry to, or activity on, court premises. Proposed
Divisions 3 and 4 of the Court Security Act deal with the powers of security officers or
authorised court officers appointed under that Act to give directions to persons on court
premises.
7. The note to item 1A cross-references subsection 13.3(3) of the Criminal Code and
clarifies that the defendant bears an evidential burden if he or she wants to rely on the
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exception that an offence under this item did not occur due to the premises being used
exclusively in connection with a court as defined under the Court Security Act. This is
consistent with Commonwealth criminal law policy as set out in the Criminal Code.
Item 2 - Part IIA (heading)
8. This item amends the title of Part IIA to refer to investigatory authorities. This
terminology appropriately reflects the bodies that will remain prescribed under Part IIA once
the courts covered by the Court Security Act are removed from the operation of the Public
Order Act.
Item 3 - Section 13A (definition of authorised officer), Item 4 - Section 13A (paragraph
(b) of the definition of authorised officer)
9. Items 3 and 4 amend the definition of authorised officer to refer to the new
terminology of `investigatory authority' rather than `court'.
Item 5 - Section 13A
10. This item inserts a new definition for `authority premises' for an investigatory
authority. This definition is intended to replace the definition of court premises and reflects
the nature of the bodies that will remain prescribed under Part IIA once the courts covered by
the Court Security Act are removed from the operation of the Public Order Act.
Item 6 Section 13A (definition of court)
11. This item repeals the definition of `court'. This term will be replaced by
`investigating authority'.
Item 7 - Section 13A (definition of court premises)
12. This item repeals the definition of `court premises'. This term will be replaced by
`authority premises'.
Item 8 - Section 13A
13. This item inserts a new definition for `investigatory authority'. This definition is
intended to replace the definition of court and reflects the nature of the bodies that will
remain prescribed under Part IIA once the courts covered by the Court Security Act are
removed from the operation of the Public Order Act.
Item 9 - Section 13AA
14. This item repeals section 13AA of the Public Order Act as it only applies to the
Federal Court. It will be replaced by proposed section 6 of the Court Security Act.
Items 10 to 19 - Sections 13B, 13C, 13D and 13E
15. Items 10 to 19 replace references to `court' and `court premises' with `investigatory
authority' and `authority premises' respectively.
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Item 20 - Subsection 13E(2)
16. Section 13E deals with directing a person to leave court or authority premises,
including if the authorising officer is not satisfied that the person has a proper reason for
being on the premises. Unamended subsection 13E(2) provides that a person has a proper
reason for being on court premises if they want to attend the hearing of the proceedings in the
court.
17. Unlike court hearings, which are generally open to the public, not all investigatory
authorities will hold public hearings. Therefore, item 20 updates terminology as well as
making it clear that the `proper reason' provision in subsection 13E(2) only applies if the
hearing is in public. This reflects the nature of the bodies that will remain prescribed under
Part IIA once the courts covered by the Court Security Act are removed from the operation of
the Public Order Act.
Item 21 - Paragraph 13E(3)(b)
18. This item replaces references to `court premises' with `authority premises'.
Item 22 - Subsection 13E(4)
19. Unamended subsection 13E(4) provides that except as provided in subsection (1), a
person is entitled to enter and remain on court premises if there is room for the person on the
premises.
20. Item 21 replaces the term `court premises' with `authority premises' and as with
item 20 above, clarifies that subsection 13E(4) only applies in relation to public hearings of
investigatory bodies. This reflects the nature of the bodies that will remain prescribed under
Part IIA once the courts covered by the Court Security Act are removed from the operation of
the Public Order Act.
Item 23 - 13F (heading) and Item 24 - Section 13F
21. These items replace references to `court premises' with `authority premises'.
Item 25 - Subsection 13G(1) and Item 26 - Subsection 13G(2)
22. Items 25 and 26 replace references to `court' and `court premises' with `investigatory
authority' and `authority premises' respectively.
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