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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 to implement Australia’s international
obligations in relation to sulphur emissions from ships under Annex VI of the
International Convention for the Prevention of Pollution from Ships,
1973.
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Portfolio
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Infrastructure, Transport, Cities and Regional Development
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Introduced
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House of Representatives on 18 September 2019
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Bill status
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Before the Senate
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2.140 In Scrutiny Digest 7 of 2019 the committee requested 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 provisions which reverse the evidential burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[51]
Minister's response[52]
2.141 The minister advised:
The reversal of evidential burden is applied to section 26FEGA Using fuel oil – exceptions through a Note amended to the end of subsection 26FEGA(7), stating that a defendant bears an evidential burden in relation to the section. The same reversal of evidential burden is applied to section 26FEHA Australian ship in emission control area – exceptions through a Note at the end of subsection 26FEHA(5).
The principle to consider an offence-specific defence that places the burden of proof on the defendant is that it should only be included when “it is peculiarly within the knowledge of the defendant; and, the defence would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter”.
Section 13.3(3) of the Criminal Code 1995 allows for an evidential burden to be placed on a defendant who wishes to rely on an exception. However, section 13.3(4) allows for the discharge of this burden if evidence is sufficiently adduced by the prosecution or the Court.
In order to access the exceptions to the offences provided for in subsections 26FEG and 26FEH, the defendant bears the evidential burden in sections 26FEGA and 26FEHA to establish the matter for the following defences:
• Subsections 26FEGA(1) and (2) Exception for ships with Annex VI equivalents provide exceptions to the ordinary and strict liability offence.
A defendant, including the master and owner of a ship, would peculiarly have the ability to adduce or point to evidence that the ship has an Annex VI equivalent (such as exhaust gas cleaning systems) approved for use on board the ship and operating in accordance with the regulations. Defences would include compliance documentation issued by the country of administration and operational logs kept onboard the ship, as provided for by the IMO guidelines and regulations. The prosecution does not have ready access to this information outside its provision by the master of the ship, in particular for foreign‑flagged ships, in where the government of the country where the ship is registered provides the approval. It would be more costly for the prosecution to disprove operation of an approved Annex VI equivalent than for a defendant to provide the evidence. The Australian regulator does not travel on the ship. However, where the Australian regulator has approved operation of an Annex VI equivalent, the prosecution or the court can discharge some or all of the evidential burden.
• Subsections 26FEGA(3) – (6) Exceptions for emergencies provide exceptions for the strict liability offence only.
The master and owner of the ship would peculiarly be able to adduce or point to evidence that the ship was operating to secure the safety of the ship, saving a life at sea or where unintentional damage has occurred. This information is carried on board the vessel, through routine operational record keeping. The Australian regulator is not aboard the ship during these occurrences and would have no knowledge of the event and actions taken until the ship arrives at an Australian port and this information is then provided to the regulator for scrutiny. It would be significantly more costly for the prosecution to disprove a claimed action than for the defendant to provide the onboard evidence.
• Subsections 26FEHA(1) – (4) Exceptions for emergencies provide exceptions to the strict liability offence only for an Australian ship within an emission control area.
• Subsection 26FEGA(7) Exception for the unavailability of fuel oil with a sulphur content of not more than the prescribed limit provides an exception to the ordinary and strict liability offence.
The defendant could peculiarly adduce or point to evidence that compliant fuel was not available at the last port of call through the required IMO notification and reporting mechanisms. The IMO 2019 Guidelines for consistent implementation of the 0.50% sulphur limit under MARPOL Annex VI include a standard format for a fuel non-availability report. Under the IMO Guidelines, it is an obligation on the master of the ship to obtain a [certified] report for presentation at the next port of call in circumstances where the ship was not able to obtain compliant fuel. It would be significantly more costly for the prosecution to disprove the non-availability claim than for the defendant to provide a completed non availability report, which is internationally accepted evidence. However, where the regulator has received prior notification of fuel non-availability at the preceding port, the prosecution or the Court can discharge the evidential burden.
• Subsection 26FEHA(5) Unavailability of fuel oil with a sulphur content of not more than the prescribed limit provides an exception to the ordinary and strict liability offence for an Australian ship within an emission control area.
This subsection is similar in operation to that in section 26FEGA for unavailability of fuel oil outside the emission control area.
It should also be noted that these reversals of evidential burden are consistent with similar exception provisions contained within Part IIID – Prevention of air pollution of the Protection of the Sea (Prevention of Pollution of Ships) Act 1983, specifically subsections 26FEG(5), (6) and 26FEH(6), (9).
Committee comment
2.142 The committee thanks the minister for this response. The committee notes the minister's advice that, in relation to proposed subsections 26FEGA(1) and (2), a defendant, including the master and owner of a ship, would peculiarly have the ability to adduce or point to evidence that the ship has an Annex VI equivalent (such as exhaust gas cleaning systems) approved for use on board the ship and operating in accordance with the regulations. The committee also notes the minister's advice that the prosecution does not have ready access to this information outside its provision by the master of the ship, in particular for foreign flagged ships, where the government of the country where the ship is registered provides the approval.
2.143 In relation to proposed subsections 26FEGA(3) – (6), the committee notes the minister's advice that the master and owner of the ship would peculiarly be able to adduce or point to evidence that the ship was operating to secure the safety of the ship, saving a life at sea or where unintentional damage has occurred. The committee also notes the minister's advice that it would be significantly more costly for the prosecution to disprove a claimed action than for the defendant to provide the onboard evidence.
2.144 In relation to proposed subsection 26FEGA(7), the committee notes the minister's advice that the defendant could peculiarly adduce or point to evidence that compliant fuel was not available at the last port of call through the required IMO notification and reporting mechanisms. The committee also notes the minister's advice that it would be significantly more costly for the prosecution to disprove the non-availability claim than for the defendant to provide a completed non-availability report, which is internationally accepted evidence.
2.145 The committee notes that in many of the circumstances described by the minister, there would be records that would be available to the prosecution. As a result, some of the information does not appear to be peculiarly within the knowledge of the defendant. The committee therefore considers that, on the information provided, the proposed presumptions do not appear to accord with the principles set out in the Guide to Framing Commonwealth Offences[53] and may therefore not be appropriate for inclusion in an offence-specific defence.
2.146 As the minister's response does not adequately address the committee's concerns, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to proposed sections 26FEGA and 26FEHA of the bill.
2.147 In Scrutiny Digest 7 of 2019 the committee requested the minister's advice as to why it is proposed to place a legal burden of proof on the defendant by including presumptions in relation to these offences. The committee also requests the minister's advice as to why it is not sufficient to reverse the evidential, rather than legal, burden of proof in this instance.[55]
Minister's response
2.148 The minister advised:
Subsections 26FEG(4) - (6) and 26FEH(6) provide "presumption[s] that the matter exists unless the contrary is proved" and notes are included outlining that the defendant bears a legal burden of proof as allowed for in Section 13.4(c) of the Criminal Code 1995).
• Regulation 2, Annex VI, MARPOL defines fuel oil as fuel "intended for combustion purposes for propulsion or operation on board a ship".
Subsection 26FEG(4) provides a presumption for sections 26FEG and 26FEGA that fuel oil carried on board a ship is carried for use as fuel. A defendant to the strict and ordinary offences (26FEG) and to exceptions to these offences (26FEGA) would be able to demonstrate that the fuel is not cargo or ballast.
A defendant can establish whether or not the fuel oil is carried in bunker tanks connected to the engine and is being used for combustion purposes for the propulsion or operation on board a ship. For example, a defendant would be uniquely able to prove that there was a permanent disconnect or barrier to the connection between the bunker fuel oil storage tanks and engine. It would be significantly more costly for the prosecution to disprove that this is the case than for a defendant to establish proof.
• Subsection 26FEH(6) provides the same presumption for sections 26FEH and 26FEHA for ships operating within an emission control area.
• Subsections 26FEG(5) and 26FEG(6) provide presumptions for subsections 26FEG(1) and (2) for the ordinary and strict liability offences, which presume the conduct of the offence was located within the Australian maritime jurisdiction as specified in subsection 26FEG(1)(d).
A defendant to an offence would have peculiar knowledge as to the location of the ship at the time of the offence. This is information carried on board the vessel through routine operational record keeping. The Australian regulator is not aboard the ship during these occurrences and would have no knowledge of the event and actions taken until the ship arrives at an Australian port and the records are provided for scrutiny. It would be significantly more costly for the prosecution to disprove that this is the case than for defendant to establish proof.
It should also be noted that a reversal of legal burden of proof are consistent with similar presumptions for fuel oil currently contained in the Protection of the Sea (Prevention of Pollution of Ships) Act 1983 in subsections 26FEG(4) and 26FEN(3).
Committee comment
2.149 The committee thanks the minister for this response. The committee notes the minister's advice that, in relation to the presumptions in proposed subsections 26FEG(4) and 26FEH(6), a defendant can establish whether or not the fuel oil is carried in bunker tanks connected to the engine and is being used for combustion purposes for the propulsion or operation on board a ship. The committee further notes the minister's advice that it would be significantly more costly for the prosecution to disprove.
2.150 In relation to proposed subsections 26FEG(5) and (6), the committee notes the minister's advice that a defendant to an offence would have peculiar knowledge as to the location of the ship and the time of the offence. The committee further notes the minister's advice that it would be significantly more costly for the prosecution to disprove that this is the case than for defendant to establish proof.
2.151 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. The inclusion of presumptions in relation to offences interferes with this common law right by placing a legal burden on the defendant to rebut the presumption. The committee reiterates its expectation that any provision that places a legal burden of proof on the defendant should be fully justified, including why it is necessary to reverse the legal, rather than evidential, burden of proof.
2.152 The committee notes that the minister's response does not contain any information as to why the legal burden, rather than the evidential burden, has been reversed in relation to the provisions of the bill. In addition, it is unclear on the information provided to the committee that the presumptions in proposed subsections 26FEG(5) and (6) are peculiarly within the knowledge of the defendant. In this respect, the committee notes the minister's advice that the Australian regulator is not aboard the ship and would have no knowledge of the event and actions taken until the ship arrives at an Australian port and the records are provided for scrutiny. If the location of the ship is recorded and the records are provided to the regulator, it does not appear that the information is therefore peculiarly within the knowledge of the defendant. The committee therefore considers that the proposed presumption does not appear to accord with the principles set out in the Guide to Framing Commonwealth Offences.[56]
2.153 As the minister's response does not adequately address the committee's concerns, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the legal burden of proof by including presumptions in items 20 and 27 of Schedule 1 to the bill.
[50] Schedule 1, items 7 and 11, proposed sections 26FEGA and 26FEHA. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[51] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 39-40.
[52] The minister responded to the committee's comments in a letter dated 31 October 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest
[53] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50 – 52.
[54] Schedule 1, items 20 and 27, proposed subsections 25FEG(4)–(6) and 26FEH(6). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[55] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 40-41.
[56] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 53.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2019/148.html