Offshore Electricity Infrastructure (Consequential Amendments) Bill 2021 [2021] AUSStaCSBSD 241 (24 November 2021)

• Offshore Electricity Infrastructure (Consequential Amendments) Bill 2021
• Strict liability offence46

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Offshore Electricity Infrastructure (Consequential Amendments) Bill 2021

Purpose	This bill seeks to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 to enable the construction, installation, commissioning, operation, maintenance, and decommissioning of offshore electricity infrastructure projects, including transmission and generation projects in the Commonwealth offshore area.
Portfolio	Industry, Science, Energy and Resources
Introduced	House of Representatives on 21 October 2021

Strict liability offence^[46]

1.99 Currently, existing subsection 280(2) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) provides that a person carrying on offshore activities must not interfere with certain activities to a greater extent than is necessary for the reasonable exercise of the rights and performance of their duties. Subsections 280(3) and (4) provide that it is an offence of strict liability for a person subject to a requirement under subsection 280(2) to engage in conduct that breaches this requirement. Existing section 460 replicates this offence in relation to persons holding relevant greenhouse gas permits. The maximum penalty for both of the existing strict liability offences is 100 penalty units.

1.100 Items 2 and 3 of Schedule 1 to the bill seek to insert proposed subparagraph 280(2)(d)(iii) and proposed subparagraph 460(2)(d)(iii) into the OPGGS Act to add any activities of another person being lawfully carried on by way of offshore infrastructure activities to the types of activities that must not be interfered with. As a result, a person who interfered with offshore infrastructure activities would be subject to the strict liability offences in subsections 280(3) and 460(3) of the OPGGS Act.

1.101 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. 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.^[47]

1.102 In this instance, the explanatory memorandum provides no explicit justification as to why it is appropriate to expand existing requirements on relevant permit holders in circumstances where a breach of these requirements may subject the person to a strict liability offence with a penalty that is above the maximum limit set out in the Guide to Framing Commonwealth Offences.

1.103 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of inserting additional elements into existing strict liability offences in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 which are subject to penalties that are inconsistent with the Guide to Framing Commonwealth Offences.

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[46] Schedule 1, items 2 and 3, subparagraphs 280(2)(d)(iii) and 460(2)(d)(iii). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

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