Offshore Electricity Infrastructure Legislation Amendment Bill 2022

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Purpose	This bill seeks to amend the Customs Act 1901 to ensure that goods and vessels that enter or exit areas off the coast of Australia in relation to offshore electricity infrastructure are appropriately regulated.
Portfolio/Sponsor	Climate Change, Energy, the Environment and Water
Introduced	House of Representative on 28 September 2022
Bill status	Before the Senate

Strict liability offence^[38]

2.92 The bill seeks to amend the Customs Act 1901 (Customs Act) by introducing a new offence in relation to offshore electricity installations. Under proposed section 33BA of item 11 of Schedule 1 to the bill, a person commits an offence of strict liability if the person uses an Australian offshore electricity installation that is subject to customs control, without first obtaining permission of the Comptroller-General of Customs. This offence is subject to a maximum of 500 penalty units.

2.93 In Scrutiny Digest 6 of 2022 the committee requested the minister's advice as to:

2.94 The minister advised that is necessary and appropriate, in line with the principles outlined in the Guide to Framing Commonwealth Offences (the Guide), to impose a strict liability offence for the unauthorised use of all installations located in Commonwealth waters, and for the penalties across all the offences to be set at a maximum of 500 penalty units.

2.95 The Guide notes that strict liability may be appropriate where it is necessary to ensure the integrity of a regulatory regime.^[41] In this regard, the minister advised that proposed section 33BA is required to mitigate unique border security risks that offshore electricity infrastructure (OEI) can pose to the Australian border. The minister advised that, as vessels engaged in domestic commerce are not subject to the extensive border controls that apply to foreign vessels, there is a heightened risk that domestic vessels will be used to traffic undeclared goods or persons onto the Australian mainland. The minister advised that proposed section 33BA mitigates this risk by providing a deterrence effect.

2.96 The minister further advised that maintaining effective customs control over OEI allows the Australian Border Force (ABF) to ensure that all goods and persons that pose a threat to the public health and safety of the Australian community, or which pose a biosecurity risk, are declared to the ABF for appropriate risk assessment and clearance. The minister also advised that proposed section 33BA ensures all goods imported into Australia are declared to the ABF, so that duties and taxes payable on those goods are collected prior to being delivered into home consumption. The Guide recognises public health and safety, the environment and the protection of the general revenue as regulatory interests that may justify the imposition of strict liability.^[42]

2.97 The minister also considered that OEI operators have sufficient notice of the regulatory requirements they must observe to lawfully operate OEI facilities in Commonwealth waters, including the consequences of breaching proposed section 33BA. The minister noted that OEI operators are subject to a comprehensive regulatory framework that demands a significant degree of due diligence, planning and investment, and that there are several legislative requirements for OEI operators to undertake relevant regulatory and operational planning before they would be in a position to undertake the conduct contemplated by proposed section 33BA.

2.98 The minister advised that the imposition of strict liability in proposed section 33BA complements the resourcing challenges that law enforcement agencies face in Australia's offshore environment. The minister advised that strict liability removes the requirement for ABF officers to prove fault in an environment that can be difficult for ABF officers to access and monitor on an ongoing basis. To this end, the minister advised that the Commonwealth offshore area covers an expansive region across Australia's maritime jurisdiction and that it is not practical, from a resourcing perspective, for the ABF to establish a consistent physical presence across this entire area.

2.99 Finally, the minister advised that the proposed penalty of 500 penalty units for failing to comply with proposed subsection 33BA is proportionate to the seriousness of the degree of harm that the offence may cause to the Australia's border security and is considered necessary to provide a sufficient deterrence to avoid future harm. In this context, the minister advised that the consequences of undeclared goods or persons entering Australia, due to the unauthorised use of OEI, can be dangerous or damaging to the Australian community. The minister advised that a maximum of 60 penalty units would be an ineffective deterrent against committing the offence in proposed subsection 33BA given that trafficking in undeclared goods can be a lucrative trade.

2.101 The committee notes the minister's advice that the imposition of a strict liability offence under proposed section 33BA is necessary and appropriate to protect the integrity of Australia's border. In relation to the inclusion of a penalty of 500 penalty units, the committee notes the minister's advice that the intention of the offence is to provide a sufficient deterrence to avoid serious future harm to Australia's border security. The committee thanks the minister for this detailed explanation.

2.102 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.103 In light of the detailed information provided, the committee makes no further comment on this matter.

[38] Schedule 1, item 11, proposed section 33BA. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[40] The minister responded to the committee's comments in a letter dated 16 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest .

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Offshore Electricity Infrastructure Legislation Amendment Bill 2022 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 112 (23 November 2022)

Strict liability offence[38]

Strict liability offence^[38]