Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 [2017] AUSStaCSBSD 60 (22 March 2017)

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Purpose	This bill seeks to amend the Biosecurity Act 2015 to make changes to requirements to control exotic mosquitoes and other disease carriers at Australia's airports and seaports, including incoming aircraft and vessels
Portfolio	Agriculture and Water Resources
Introduced	House of Representatives on 15 February 2017

Reversal of evidential burden of proof^[7]

1.12 Section 270 of the Biosecurity Act 2015 makes it an offence where a person is in charge, or the operator, of a vessel in Australian seas and the vessel discharges ballast water. Item 30 proposes to insert an exception (offence specific defence) to this offence, stating that the offence does not apply if certain conditions are met and certain plans are in place. The offence carries an existing maximum penalty of 2,000 penalty units.

1.13 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.

1.14 While 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 proposed to be introduced by item 30 has not been addressed in the explanatory materials.^[8]

1.15 As neither the statement of compatibility nor the explanatory memorandum address this issue, the committee requests the Minister’s advice as to why it is proposed to use an offence-specific defence (which reverse the evidential burden of proof) in this instance. The committee’s consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[9]

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

Strict liability^[10]

1.16 Item 126 proposes inserting new section 299A requiring the person in charge, or the operator, of a vessel to make a report where the vessel disposes of sediment in certain circumstances. Proposed subsection (3) makes it an offence of strict liability if the person does not make a report when required. The offence is subject to 120 penalty units.

1.17 In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply. 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.^[11]

1.18 The statement of compatibility examines a number of provisions that are said to affect or introduce some strict liability offences, including item 30, and states that the application of strict liability is necessary to prevent potentially significant damage to Australia's marine environment and adverse effects to the related industries. It states that strict liability offences are necessary 'because they are imposed in order to effectively deter contravention of ballast water obligations under the Act'. It goes on to state that the offences are only directed at persons in charge 'who can be expected to be responsible and aware of the requirements for the legislation' and the scheme is of a regulatory nature.^[12]

1.19 However, the committee notes that the Guide to Framing Commonwealth Offences provides that the application of strict liability is generally only considered appropriate where the offence is punishable by a fine of up to 60 penalty units for an individual.^[13] In this case, the proposed strict liability offence is subject to a penalty of up to 120 penalty units. No explanation has been provided as to why the proposed penalty for the strict liability offence is double that which is generally considered appropriate.

1.20 The committee requests the Minister's advice as to why the proposed penalty for the strict liability offence in item 30 is double that which is considered appropriate in the Guide to Framing Commonwealth Offences.^[14]

[8] Note that the statement of compatibility, at pp 30-31, addresses other provisions which apparently reverse the evidential burden of proof but provides no justification in relation to item 30.

[9] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50–52.

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

[13] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[14] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

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