Commentary on Amendments and Explanatory Materials [2018] AUSStaCSBSD 135 (9 May 2018)

• Commentary on amendments and explanatory materials

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Commentary on amendments
and explanatory materials

Migration Amendment (Regulation of Migration Agents) Bill 2017

[Digest 8 & 10/17]

1.198 On 27 March 2018 the House of Representatives agreed to 32 government amendments, the Assistant Minister for Home Affairs presented a supplementary explanatory memorandum, and the bill was read a third time.

1.199 Amendment 11 replaces item 22 with a new item, which would add new subsections 312(4) and (5) into the bill. Proposed subsection 312(4) seeks to require a registered migration agent to notify the Migration Agents Registration Authority (MARA), in writing, within 28 days after he or she becomes either a restricted legal practitioner or an unrestricted legal practitioner. Failure to notify MARA in accordance with that subsection would be an offence punishable by 100 penalty units. Proposed subsection 312(5) seeks to make that offence one of strict liability.

1.200 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 provision states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the supplementary 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.^[156] In this instance, the supplementary explanatory memorandum provides no justification for the imposition of strict liability, merely stating the operation and effect of the relevant provision.

1.201 The committee further notes that the Guide to Framing Commonwealth Offences states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.^[157] In this case, the amendment proposes to impose a penalty of 100 penalty units.

1.202 The committee draws its scrutiny concerns regarding proposed subsections 312(4) and (5) to the attention of senators, and leaves to the Senate as a whole the appropriateness of applying strict liability to an offence subject to a maximum penalty of 100 penalty units.

Security of Critical Infrastructure Bill 2017

[Digest 1 & 3/18]

1.203 On 28 March 2018 the Senate agreed to 20 government amendments, the Minister for Communications (Senator Fifield) tabled an addendum to the explanatory memorandum and a supplementary explanatory memorandum and the bill was read a third time.

1.204 The committee thanks the minister for tabling the addendum to the explanatory memorandum which includes key information previously requested by the committee.

1.205 The committee has no comments on amendments made or explanatory material relating to the following bills:

• Civil Law and Justice Legislation Amendment Bill 2017;^[158]

• Higher Education Support Legislation Amendment (Student Loan Sustainability) Bill 2018; ^[159] and

• Security of Critical Infrastructure (Consequential and Transitional Provisions) Bill 2017;^[160] and

• Treasury Laws Amendment (2017 Measures No. 5) Bill 2017.^[161]

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

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

[158] On 28 March 2018 the Minister for International Development and the Pacific (Senator Fierravanti-Wells) tabled an addendum to the explanatory memorandum.

[159] On 27 March 2018 the House of Representatives agreed to 16 government amendments, the Assistant Minister for Vocational Education and Skills (Mrs K L Andrews) presented a correction to the explanatory memorandum and a supplementary explanatory memorandum, and the bill was read a third time.

[160] On 28 March 2018 the Senate the Minister for Communications (Senator Fifield) tabled an a supplementary explanatory memorandum and the bill was read a third time.

[161] On 28 March 2018 the Senate agreed to one government amendment and on 8 May 2018 the supplementary explanatory memorandum was tabled.