Underwater Cultural Heritage Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 194 (15 August 2018)

• Underwater Cultural Heritage Bill 2018
• Forfeiture 24

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Underwater Cultural Heritage Bill 2018

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
Bill status	Before the House of Representatives
Bill status	Before the Senate

Forfeiture ^[24]

2.41 The committee initially scrutinised this bill in Scrutiny Digest No. 5 of 2018 and sought the assistant minister's advice.^[25] The committee considered the assistant minister's response in Scrutiny Digest No. 6 of 2018^[26] and requested the assistant minister's further detailed advice, with reference to the relevant principles as set out in the Guide to Framing Commonwealth Offences,^[27] as to why the proposed forfeiture provision does not incorporate safeguards consistent with those contained in the Proceeds of Crime Act 2002 to protect the interests of innocent third parties, noting that innocent third parties could include owners of any vessels, equipment or articles that were used or involved in the commission of an offence, or contravention of a civil penalty provision, without their knowledge.

Assistant Minister's further response^[28]

2.42 The assistant minister advised:

Forfeiture
The Committee requests further detailed advice, with reference to the relevant principles as set out in the Guide to Framing Commonwealth Offences, as to why the proposed forfeiture provision does not expressly incorporate safeguards to protect the interests of innocent third parties.
I have considered the Committee's further request for detailed advice, and reaffirm that the Bill safeguards the interests of third parties by allowing a court to determine whether to make a forfeiture order, in circumstances where the court has found that a person has contravened a civil penalty provision or has been convicted of an offence under the Bill. Further detailed advice in relation to the protection of innocent third parties' rights will be included in an addendum to the explanatory memorandum.
Addendum to explanatory memorandum
The Committee has requested key information, provided in my previous response to the Committee dated 31 May 2018, to be included in the explanatory memorandum to the Bill. I agree with this request and confirm that this information will be included in an addendum to the explanatory memorandum, to be tabled when the Bill is debated in the Senate.

Committee comment

2.43 The committee thanks the assistant minister for this response. The committee notes the assistant minister's further advice that it is considered that the bill safeguards the interests of third parties by allowing a court to determine whether to make a forfeiture order and that further detailed advice in relation to the protection of the rights of innocent third parties will be included in an addendum to the explanatory memorandum. Finally, the committee notes the assistant minister's advice that other key information provided in the previous response will also be included in the addendum to the explanatory memorandum.

2.44 While the committee welcomes the assistant minister's undertaking to provide further detailed advice on this matter in an addendum to the explanatory memorandum, the committee notes this advice has not been provided in the assistant minister's response. In addition, amendments to the explanatory memorandum will not, of itself, address the committee's scrutiny concerns that there appears to be a lack of legislative protections for innocent third parties in the proposed forfeiture provision. The committee reiterates that it considers it may be appropriate, with appropriate modifications, to include similar safeguards to those set out in the Proceeds of Crime Act 2002 in relation to forfeiture, including that:

• a person with an interest in the property should be given written notice of an application to forfeit that property;

• an affected person should be able to appear and give evidence at a hearing to forfeit property;

• an innocent party should be able to have their property excluded from a forfeiture order; and

• a person should be able to be compensated for innocently held interest in property that is subsequently forfeited.^[29]

2.45 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of a forfeiture provision that does not incorporate safeguards consistent with those contained in the Proceeds of Crime Act 2002 to protect the interests of innocent third parties.

2.1

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

[25] Senate Scrutiny of Bills Committee, Scrutiny Digest No. 5 of 2018, at pp. 73-80.

[26] Senate Scrutiny of Bills Committee, Scrutiny Digest No. 6 of 2018, at pp. 157-182.

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

[28] The assistant minister responded to the committee's comments in a letter dated 10 July 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest No. 8 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[29] See Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 46‒47.