Renewable Fuel Bill 2017 [2017] AUSStaCSBSD 343 (18 October 2017)

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Purpose	This bill seeks to amend the Fuel Quality Standards Act 2000 to provide for the regulation of renewable fuel content in petrol and stipulates that the renewable fuels volume percentage be mandated at 5% minimum from 1 July 2019 and 10% minimum from 1 July 2022
Sponsor	Mr Bob Katter MP
Introduced	House of Representatives on 11 September 2017
Scrutiny principle	Standing Order 24(1)(a)(i)

Offence provision^[81]

1.111 Proposed section 36E provides that it is an offence if a person supplies motor vehicle fuel in circumstances that do not comply with requirements for renewable fuel set out in regulations. The offence carries a maximum penalty of 10,000 penalty units (or $2.1 million).

1.112 This offence provision raises a number of scrutiny concerning relating to:

1.113 In relation to the reversal of the evidential burden of proof, proposed subsection 36E(2) provides an exception (offence specific defence) to the offence, stating that the offence does not apply if a person believes on reasonable grounds that the fuel supplied will be further processed for the purpose of bringing the fuel into compliance with the regulations. Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter. While the defendant bears the evidential burden in relation to this matter, the explanatory memorandum does not address this reversal of the onus of proof.

1.114 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.115 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversal of the evidential burden of proof in proposed subsection 36E(2) has not been addressed in the explanatory materials.

1.116 In addition, as noted above, the proposed offence carries a maximum penalty of 10,000 penalty units ($2.1 million). The committee's expectation is that the rationale for the imposition of significant penalties will be fully outlined in the explanatory memorandum. In particular, penalties should be justified by reference to similar offences in Commonwealth legislation. In this case, the proposed level of penalty has not been addressed in the explanatory memorandum.

1.117 Further, the offence applies if a person supplies motor vehicle fuel in circumstances that do not comply with requirements for renewable fuel set out in regulations. The committee's view is that significant matters, such as matters that form part of an offence provision, should be included in primary legislation and not left to delegated legislation, unless a sound justification for the use of delegated legislation is provided. It is particularly important, from a scrutiny perspective, for the content of an offence to be clear from the offence provision itself, so that the scope and effect of the offence is clear so those who are subject to the offence may readily ascertain their obligations.

1.118 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of:

Strict liability^[82]

1.119 Proposed section 36N(2) and 36P(5) introduce two new provisions which make it an offence for a person with certain notification obligations to omit to do an act and that omission breaches those requirements. Each offence is stated to be one of strict liability and subject to 60 penalty units. The explanatory memorandum provides no justification as to why the offences are subject to strict liability.

1.120 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[83]

1.121 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the application of strict liability to two proposed offences.

[81] Item 1, proposed subsection 36E(2). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[82] Item 1, proposed sections 36N(2) and 36P(5). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[83] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests