Seafarers Safety and Compensation Levies Collection Bill 2016 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 53 (15 February 2017)

• Seafarers Safety and Compensation Levies Collection Bill 2016
• Trespass on personal rights and liberties—privilege against self-incrimination 6
• Trespass on personal rights and liberties—reversal of the evidential burden of proof7

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Seafarers Safety and Compensation Levies Collection Bill 2016

Purpose	This bill seeks to provide for the collection of the seafarers' insurance levy and cost recovery levy
Portfolio	Employment
Introduced	House of Representatives on 13 October 2016
Bill status	Before the House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(i)

2.35 The committee dealt with this bill in Alert Digest No. 8 of 2016. The Minister responded to the committee's comments in a letter dated 6 February 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Trespass on personal rights and liberties—privilege against
self-incrimination ^[6]

Initial scrutiny – extract

2.36 Clause 9 requires an employer to give the Safety, Rehabilitation and Compensation Commission a return setting out information about seafarer berths within a set period of time. Subclause 9(7) abrogates the privilege against self-incrimination, as it provides that a person is not excused from giving a return on the ground that the return might tend to incriminate them or expose them to a penalty. However, subclause 9(8) provides for a use and derivative use immunity as it provides that the return or anything obtained as a direct or indirect consequence of giving the return is not admissible in evidence in most proceedings.

2.37 As the explanatory memorandum does not provide a justification for abrogating the privilege against self-incrimination, the committee seeks the Minister's advice as to the rationale for the approach, particularly by reference to the matters outlined in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (specifically pages 94–97).

Minister's response

2.38 The Minister advised:

Clause 9 of the Bill requires employers to regularly report information to the Commission about the number of seafarer berths on a vessel. This information must be provided within 14 days of the end of the quarter to facilitate the timely collection of levies to support the scheme.
Subclause 9(7) provides a person cannot refuse to provide information on the ground that it might incriminate them. This information is critical to the Commission's ability to calculate levies. Collecting the information through other means, for example, through physical inspections of the number of berths on ships at sea, would be impractical and extremely costly for the scheme.
The abrogation of the privilege is limited. Sub clause 9(8) prevents any information in the return, or document or thing obtained as a direct or indirect consequence of giving the return, being used in future proceedings against the person.

Committee comment

2.39 The committee thanks the Minister for this response. The committee notes the Minister's advice that the requirement for employers to regularly report information to the Commission about the number of seafarers booths on a vessel is critical to the Commission's ability to calculate levies, and collecting the information through other means would be impractical and extremely costly for the scheme. The committee also notes the Minister's advice that the abrogation is limited, as the bill contains a use and derivative use immunity.

2.40 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.41 In light of the information provided, the committee makes no further comment on this matter.

Trespass on personal rights and liberties—reversal of the evidential burden of proof^[7]

Initial scrutiny – extract

2.42 As set out above, clause 9 requires an employer to give the Safety, Rehabilitation and Compensation Commission a return setting out information about seafarer berths within a set period of time. Subclauses 9(4) and (5) make it an offence of strict liability to omit to comply with these requirements and subclause 9(6) states the offence does not apply if the person has a reasonable excuse. This defence reverses the burden of proof by placing an evidential burden on the defendant.

2.43 Subclause 20(3) provides that a person commits an offence if they have been issued with an identity card and, as soon as practicable after ceasing to be an authorised person, the person does not return the card. Subclause 20(4) makes this an offence of strict liability and subclause 20(5) states that the offence does not apply if the identity card was lost or destroyed. This defence reverses the burden of proof by placing an evidential burden on the defendant.

2.44 The explanatory memorandum provides a justification as to why strict liability attaches to the offences, and in light of those justifications the committee makes no comment in relation to that aspect of the offences. However, the explanatory memorandum does not provide any justification for reversing the evidential burden of proof.

2.45 The committee therefore seeks the Minister's advice as to the rationale for seeking to reverse the evidential burden of proof, particularly by reference to the matters outlined in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (specifically pages 50–51).

Minister's response

2.46 The Minister advised:

Failure to provide information on the number of berths on a vessel within 14 days of the end of the quarter is an offence unless the person has a reasonable excuse. Subclause 9(6) places an evidential burden on the employer in relation to this defence. This is because the employer is the only person in a position to provide evidence of any reasonable excuse for failing or refusing to comply with the obligation.
Clause 20 provides that a person commits an offence if they have been issued with an identity card and the person does not return the card as soon as practicable after ceasing to be an authorised person. The offence does not apply if the identity card was lost or destroyed. Subclause 20(5) places the evidential burden on the authorised person in relation to this defence because the authorised person is best placed to adduce evidence that the card has be [sic] lost or destroyed and the circumstances leading to the card being lost or destroyed. This information is peculiar to their knowledge.

Committee comment

2.47 The committee thanks the Minister for this response. The committee notes the Minister's advice in relation to subclause 9(6) that the employer is the only person in a position to provide evidence of any reasonable excuse for failing or refusing to comply with the relevant obligation. The committee also notes the Minister's advice in relation to subclause 20(5) that the authorised person is best placed to adduce evidence as to the circumstances leading to an identity card being lost or destroyed and that the information is peculiar to their knowledge.

2.48 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.49 In light of the information provided, the committee makes no further comment on this matter.

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[6] Subclause 9(7).

[7] Subclauses 9(6) and 20(5).