Green New Deal (Quit Coal and Renew Australia) Bill 2020 [2020] AUSStaCSBSD 107 (17 June 2020)

• Green New Deal (Quit Coal and Renew Australia) Bill 2020
• Strict liability 4

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Green New Deal (Quit Coal and Renew Australia) Bill 2020

Purpose	This bill seeks to amend establish Renew Australia, a public authority to lead the national transition to new clean energy systems. It also seeks to prohibit the mining, burning, export and importation of thermal coal in Australia
Sponsor	Mr Adam Bandt MP
Introduced	House of Representatives on 10 June 2020

Strict liability ^[4]

1.9 Subclause 64(10) provides that it will be an offence, subject to a penalty of 100 penalty units, for a person who has permission to export thermal coal to contravene the requirements or conditions of the permission. Proposed subclause 64(11) provides that the offence is one of strict liability.

1.10 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.^[5] No justification is provided in the explanatory memorandum.

1.11 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.^[6] In this instance, the bill proposes applying strict liability to an offence with a maximum penalty of 100 penalty units.

1.12 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of including a strict liability offence with a penalty above what is recommended in the Guide to Framing Commonwealth Offences.

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[4] Clause 64. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

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

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