Underwater Cultural Heritage Bill 2018 [2018] AUSStaCSBSD 133 (9 May 2018)

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Purpose	This bill seeks to provide for the protection and conservation of Australia's underwater cultural heritage
Portfolio	Environment and Energy
Introduced	House of Representatives on 28 March 2018

Significant matters in delegated legislation
Broad discretionary power ^[134]

1.166 Part 2 of the bill relates to what may constitute 'protected underwater cultural heritage' for the purposes of the bill. Clauses 17, 18 and 19 give the minister broad powers to declare certain articles to be protected underwater cultural heritage. In doing so, the minister must have regard to any criteria that are in force under clause 22.^[135]

1.167 Clause 22 of the bill provides that the Underwater Cultural Heritage Rules may prescribe criteria to assist in assessing the heritage significance of particular items that may be protected under the bill. The explanatory memorandum states that it is intended for the rules to prescribe criteria which are drawn from the Australia ICOMOS 1979 Burra Charter; an international agreement that established the basis for heritage significance criteria in Australia.^[136] In addition, subclauses 23(4) and 25(3) provide that the minister must have regard to the matters (if any) specified in the Underwater Cultural Heritage Rules in deciding whether to grant or vary a permit relating to protected underwater cultural heritage. The explanatory memorandum states that the rules may contain guidance on matters such as how the diversity of permit purposes should be dealt with, how to assess what might constitute an adverse impact and whether an adverse impact should be allowed in certain circumstances.^[137]

1.168 The committee's view is that significant matters, such as criteria relating to assessing whether an item is of heritage significance or whether to grant or vary a permit, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this case, the explanatory memorandum does not provide information as to why these criteria are not included in the bill.

1.169 The committee also notes that clause 22 provides that the rules may prescribe criteria to which the minister must have regard when declaring articles to be protected, or provisionally protected, rather than requiring that the rules must prescribe such criteria. As such, if rules are not made prescribing assessment criteria, this would leave the minister with broad discretionary powers, unguided by any legislative criteria, to declare what underwater cultural heritage articles are to be protected. In addition, as noted above, subclauses 23(4) and 25(3) provide that the minister must have regard to the matters, if any, specified in the rules in deciding whether to grant or vary a permit relating to protected underwater cultural heritage. If the rules do not specify any such matters, there would be no legislative criteria on which the minister would base his or her decision to grant or vary a permit. The explanatory memorandum does not address this issue.

Strict liability offences^[138]

1.171 Clauses 27 to 39 seek to create various offences for activities relating to protected underwater cultural heritage. Each clause applies strict liability to the offence and carries a penalty of 60 penalty units.

1.172 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.^[139]

1.173 In this case, the explanatory memorandum states that strict liability has been applied to the offences in the bill to ensure the integrity of the regulatory regime, and is to be used in circumstances where there is public interest in ensuring that regulatory schemes are observed and where it can reasonably be expected that individuals who may be affected by the scheme are aware of their duties and obligations.

1.174 The Guide to Framing Commonwealth Offences^[140] states that applying strict liability may be justified where all of a number of criteria apply, including that there are legitimate grounds for penalising persons lacking fault.

1.175 The committee notes that while the explanatory memorandum explains that the use of strict liability will ensure the integrity of the regulatory regime being established in the bill, it does not explain what the legitimate grounds are for penalising persons lacking fault in respect of each of the offences relating to protected underwater cultural heritage. This is of particular relevance to the proposed offences that do not relate to the use of permits (for example the offence of engaging in prohibited conduct in a protected zone)^[141], that may result in a person who has not been put on notice being held liable without any requirement to prove fault.

1.176 The committee requests a detailed justification from the minister for each proposed strict liability offence in clauses 27 to 39 of the bill, with reference to the principles set out in the Guide to Framing Commonwealth Offences.^[142]

Reversal of evidential burden of proof^[143]

1.177 As noted above, clauses 29 to 32 and 34 to 36 ^[144] create various offences for activities relating to protected underwater cultural heritage. Exceptions to the offences (offence specific defences) are provided in the relevant clauses, stating that the offence does not apply if the relevant conduct occurred in accordance with a permit granted under clause 23, or in relation to subclause 31(3), if the person is the Commonwealth, a State or a Territory or an authority of them. The offences in clauses 29 to 31 and 35 carry a maximum penalty of imprisonment for 5 years or 300 penalty units, or both; and the offences in clauses 32, 34 and 36 carry a maximum penalty of imprisonment for 2 years or 120 penalty units, or both.

1.178 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.

1.179 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, interfere with this common law right.

1.180 While in these instances 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 individually justified.

1.181 The statement of compatibility states that the matters to be proved in making out the offence specific defences in the bill are matters that would be in the particular knowledge of the defendant. However, the committee notes that the Guide to Framing Commonwealth Offences^[145] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

1.182 In this case, it is not apparent that matters such as whether conduct occurred in accordance with a permit, are matters peculiarly within the defendant's knowledge, and that it would be difficult or costly for the prosecution to establish the matters. These matters appear to be matters more appropriate to be included as an element of the offence.

1.183 As the explanatory materials do not directly 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 these instances. 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.^[147]

Broad scope of offence provision^[148]

1.184 Clause 40 seeks to make it an offence to fail to notify the minister within 21 days if a person finds an article of underwater cultural heritage, that appears to be of an archaeological character, in Australian waters. 'Underwater cultural heritage' is defined as being any trace of human existence that has a cultural, historical or archaeological character and is located under water.^[149] The offence carries a maximum penalty of 120 penalty units (and a civil penalty of 120 penalty units).

1.185 There is no guidance in the bill or the explanatory memorandum as to what factors would contribute to an item appearing to be 'of an archaeological character'. It is unclear to the committee how a person who finds an article in the water would be put on notice about the requirements of clause 40, and how such a person would determine whether the article is one of underwater cultural heritage and 'appears to be of an archaeological character'.

1.186 The committee requests the minister's advice as to how a person who finds an article in Australian waters will know whether that article is one of 'underwater cultural heritage' that 'appears to be of an archaeological character'. Further the committee requests the minister's advice as to how the general public will be notified of their obligations under clause 40 to notify the minister within 21 days if they find such an article.

Broad delegation of administrative power^[150]

1.187 Clauses 41 and 42 trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to provisions and offences proposed in the bill. Subclauses 41(4) and 42(3) provide that an authorised person may be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

1.188 The committee therefore requests the minister's advice as to why it is necessary to confer monitoring and investigatory powers on any 'other person' to assist an authorised person and whether it would be appropriate to amend the bill to require that any person assisting an authorised person have the expertise appropriate to the function or power being carried out.

Forfeiture^[151]

1.189 Clause 47 provides that if a person is convicted of an offence against the Act or is found to have contravened a civil penalty provision of the Act, a court may order the forfeiture to the Commonwealth of any vessels, equipment or articles used or otherwise involved in the commission of the offence or the contravention of the civil penalty provision. Subclause 47(3) provides that any vessel, equipment or article forfeited may be sold or otherwise dealt with as the minister thinks fit.

1.190 Forfeiture of proceeds and instruments of Commonwealth indictable offences is generally dealt with under the Proceeds of Crime Act 2002 (POCA). The Guide to Framing Commonwealth Offences notes that it may sometimes be necessary to include additional forfeiture provisions in other legislation, but that where these additional provisions are needed, the powers and safeguards in those provisions should be consistent with the POCA, including provisions to safeguard the interests of innocent third parties.^[152]

1.191 It does not appear from the face of the bill, or the explanatory material, that clause 47 incorporates any of the safeguards set out in the POCA to safeguard the interests of innocent third parties, or to ensure appropriate judicial oversight of forfeiture orders.

1.192 As the explanatory materials do not address this issue, the committee requests the minister's advice as to why the proposed forfeiture provision does not incorporate safeguards consistent with the Proceeds of Crime Act 2002 to protect the interests of innocent third parties. The committee's consideration of the appropriateness of a new forfeiture provision is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[153]

Incorporation of external material into the law^[154]

1.193 Clause 61 provides that the minister may make the Underwater Cultural Heritage Rules. Subclause 61(4) provides that the rules may make provision in relation to a matter by applying, adopting or incorporating any matter contained in any other instrument or writing as in force or existing from time to time. The explanatory memorandum provides no explanation as to what type of instruments or documents may need to be applied, adopted or incorporated in a reporting standard and does not explain why it would be necessary for the material to apply as in force or existing from time to time.

1.194 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

1.195 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

1.196 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[155] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.197 Noting the above comments, the committee requests the minister's advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under subclause 61(4), whether these documents will be made freely available to all persons interested in the law and why it is necessary to apply the documents as in force or existing from time to time, rather than when the rules are first made.

[134] Clauses 22, 23 and 25. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[138] Clauses 27 to 39. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

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

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

[142] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 23.

[143] Clauses 29 to 32 and 34 to 36. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[144] See subclauses 29(2), 30(3), 31(2) and (3), 32(2), 34(2), 35(2) and 36(2). The committee notes that there are other offence-specific defences in the bill, but the committee makes no comment in relation to these.

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

[146] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

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

[148] Clause 40. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[150] Clauses 41 and 42. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).

[151] Clause 47. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[152] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 45‒47.

[153] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 45‒47.

[154] Clause 61. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[155] Joint Standing Committee on Delegated Legislation, Parliament of Western Australia, Access to Australian Standards Adopted in Delegated Legislation, June 2016.

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