Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020 [2020] AUSStaCSBSD 34 (26 February 2020)

• Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020
• Reversal of the evidential burden of proof 13
• Significant matters in delegated legislation15

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Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020

Purpose	This bill seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 to introduce a climate trigger to ensure Australia fulfils its obligations under the Climate Change Conventions through thorough environmental assessment of emissions-intensive activities
Sponsor	Senator Hanson-Young
Introduced	Senate on 13 February 2020

Reversal of the evidential burden of proof ^[13]

1.15 The bill seeks to insert proposed section 24H into the Environment Protection and Biodiversity Conservation Act 1999 to make it an offence to take an 'emissions-intensive' action which has, will have, or is likely to have, a significant impact on the environment. Proposed subsection 24H(2) provides a number of exceptions (offence-specific defences) to this offence. The offence carries a maximum penalty of imprisonment for 7 years or 420 penalty units, or both.

1.16 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, interferes with this common law right.^[14]

1.17 While in this instance 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 justified. The committee notes that the explanatory materials do not explain why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance.

1.18 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of using offence-specific defences (which reverse the evidential burden of proof) in this instance.

Significant matters in delegated legislation^[15]

1.19 This bill seeks to insert proposed section 24J into the Environment Protection and Biodiversity Conservation Act 1999 to define what constitutes an 'emissions-intensive action'. Under proposed section 24J, an action will be an emissions-intensive action if the action involves mining operations, drilling exploration, land clearing, or is specified in the regulations.

1.20 The committee's view is that significant matters, such as definitions relevant to the scope of an offence, should be included on the face of the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum provides no justification as to why the regulations may specify additional actions as an 'emissions-intensive action' for the purposes of the offence in proposed section 24H.

1.21 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. The committee further notes that the offence to which the definition of 'emissions-intensive action' relates is punishable by up to 7 years imprisonment.

1.22 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing regulations to specify additional actions as an 'emissions-intensive action' for the purposes of the offence in proposed section 24H.

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[13] Schedule 1, item 1, proposed subsection 24H(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[14] 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.

[15] Schedule 1, item 1, proposed paragraph 24J(d). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).