Protection of the Sea (Prevention of Pollution From Ships) Amendment (Polar Code) Bill 2017 [2017] AUSStaCSBSD 73 (22 March 2017)

• Protection of the Sea (Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017
• Strict liability 50
• Reversal of evidential burden of proof54

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Protection of the Sea (Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017

Purpose	This bill seeks to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to implement amendments of the International Convention for the Prevention of Pollution from Ships 1973, to ensure that there are strict discharge restrictions for oil, noxious liquid substances, sewage and garbage for certain ships operating in polar waters
Portfolio	Infrastructure and Regional Development
Introduced	House of Representatives on 16 February 2017

Strict liability ^[50]

1.68 Proposed subsection 26BCC(3) and (4) make it an offence of strict liability if the master and the owner of a ship discharge sewage from the ship in the Antarctic Area and Artic waters in certain circumstances. The offence carries a significant penalty of 500 penalty units. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that strict liability offences are generally only considered appropriate where the offence is punishable by a fine of up to 60 penalty units for an individual (300 for a body corporate).^[51]

1.69 The explanatory memorandum provides the following justification as to why the offences are subject to strict liability:

The justification for the need for the strict liability offences is to ensure the integrity of the regulatory regime as it relates to the pristine natural environments of the Antarctic Area and Arctic waters. Further, the offences do not include imprisonment as a penalty and this approach ensures drafting consistency with the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.^[52]

1.70 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, Infringement Notices and Enforcement Powers. In particular, the committee expects clear justification where the proposed penalty for a strict liability offence exceeds 60 penalty units. This has not been explained in the explanatory memorandum.

1.71 The committee requests a detailed justification from the Minister for each proposed strict liability offence with reference to the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,^[53] in particular the justification for the proposed penalty.

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.

Reversal of evidential burden of proof^[54]

1.72 Proposed subsections 26BCC(5), (6), (7), (8) and (9) provide exceptions (offence specific defences) to the strict liability offences relating to the discharge of sewage from a ship in the Antarctic Area and Artic waters.

1.73 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.

1.74 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 in proposed section 26BCC has not been addressed in the explanatory materials.

1.75 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 offence-specific defences (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.^[55]

Pending the Minister's reply, the committee draws Senators' attention to the provisions, as they 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.

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[50] Item 14, subsection 26BCC(3) and (4).

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

[52] Explanatory memorandum, p. 6.

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

[54] Item 14, subsection 26BCC(6).

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