Transport Security Amendment (Critical Infrastructure) Bill 2022 [2022] AUSStaCSBSD 31 (18 March 2022)

• Transport Security Amendment (Critical Infrastructure) Bill 2022
• Strict liability117
• Protection from civil liability123
• Protection from criminal and civil liability
• Reversal of the evidential burden of proof125

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Transport Security Amendment (Critical Infrastructure) Bill 2022

Purpose	This bill seeks to amend the definition of unlawful interference in both the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003. The bill will also establish an additional purpose, under both the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003, of safeguarding against operational interference.
Portfolio	Home Affairs
Introduced	House of Representatives on 17 February 2022

Strict liability^[117]

1.175 Item 53 of Schedule 1 to the bill seeks to introduce two new provisions into the Aviation Transport Security Act 2004 (the Aviation Act) which make it an offence for a person to engage in conduct which breaches an improvement notice. An improvement notice may be issued under proposed section 117A where a security inspector reasonably believes there has been a contravention of the Aviation Act, or that a contravention is likely to occur.

1.176 Item 96 of Schedule 2 to the bill introduces two new similar offences into the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act).

1.177 All four of these offences are drafted as offences of strict liability. The offences set out in proposed subsection 117C(1) of the Aviation Act and proposed subsection 187C(1) of the Maritime Act are subject to a maximum penalty of 200 penalty units. The offences set out in proposed subsection 117C(4) of Aviation Act and proposed subsection 187C(4) of the Maritime Act are subject to a maximum penalty of 100 penalty units.

1.178 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.^[118]

1.179 In this instance, the explanatory memorandum states in relation to the offences introduced by item 53 of Schedule 1 to the bill that:

... imposing strict liability offences for non-compliance with subsections 117C(1) and (3) is appropriate in the circumstances because:

- the offences and their penalties each operate as a general deterrent to noncompliance and as an incentive to comply with an improvement notice;

- the penalties for these offence are similar to others imposed within the Aviation Act, and are commensurate with the risk to aviation security that non-compliance poses;

- these penalties are reasonable penalties to impose, as they each have a necessary element of deterrence whilst they are each not a manifestly excessive penalty for a strict liability offence.^[119]

1.180 The explanatory memorandum further states:

... penalising these persons in the absence of proof of fault is appropriate to apply because giving an improvement notice is necessary to safeguard against an unlawful interference with aviation, and engaging in noncompliant conduct poses a serious risk to aviation security.^[120]

1.181 In relation to the strict liability offences introduced under Schedule 2 to the bill, the explanatory memorandum states:

Making the offence strict liability penalty operates to deter behaviour that would obstruct the activities of an aviation security inspector and prevent them from obtaining relevant information. It is appropriate for the offences not to include a fault element to act as a strong deterrent against engaging in behaviour that hinders or obstructs the exercise of an inspectors powers. The ability to exercise their powers is necessary to safeguard against unlawful interference in the aviation and maritime industries and to ensure the integrity of the inspection regime.^[121]

1.182 While acknowledging the importance of ensuring deterrence of behaviour which may impact on the effectiveness of the aviation and maritime transport security regimes, the committee notes that the penalties that would be imposed under the offences are higher than is recommended within the Guide to Framing Commonwealth Offences.^[122] It is not clear to the committee from the explanation provided why it is appropriate or necessary to impose a higher penalty than is recommended within the Guide.

1.183 In light of the above, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of inserting four new strict liability offences into the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 which would impose penalties that are higher than those recommended in the Guide to Framing Commonwealth Offences.

Protection from civil liability^[123]

1.184 Item 34 of Schedule 1 to the bill seeks to insert proposed subsections 80B(3) and (4) into the Aviation Act to provide that an aviation industry participant, an employee of an aviation industry participant, or an officer, employee or agent of a person is not liable to an action or other proceeding in damages for acts done, or omitted to be done, in good faith in compliance with a notice provided under proposed subsection 80B(1). A notice provided under proposed subsection 80B(1) may require a person to provide an aviation security inspector with specified assistance that is reasonably necessary to allow the inspector to exercise powers conferred on the inspector by the bill.

1.185 Proposed subsections 80B(3) and (4) remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.186 Item 64 of Schedule 2 to the bill seeks to insert similar provisions into the Maritime Act.

1.187 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides no explanation for this provision, merely restating the terms of the provision and providing a general discussion of the meaning of 'good faith'.^[124]

1.188 The committee requests the minister's advice as to why it is considered necessary and appropriate to confer civil immunity on persons under proposed subsections 80B(3) and (4) of the Aviation Transport Security Act 2004 and proposed subsections 145BB(3) and (4) of the Maritime Transport and Offshore Facilities Security Act 2003 so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.

Protection from criminal and civil liability
Reversal of the evidential burden of proof^[125]

1.189 Item 54 of Schedule 2 to the bill seeks to insert proposed subsection 139(4) into the Maritime Act. Proposed subsection 139(4) seeks to provide that a maritime security inspector is not subject to any civil or criminal liability under a law of the Commonwealth, a state or a territory in relation to the exercise of a power under proposed paragraph 139(2)(i) to the extent that the exercise of the power is in good faith, and does not endanger the health or safety of any person or result in significant loss of, or serious damage to, property. Proposed paragraph 139(2)(i) provides that a maritime security inspector may test a security system (including by using an item, test weapon or vehicle to test its detection) in a restricted access area of a security regulated ship, in accordance with any requirements prescribed in the regulations.

1.190 Item 58 of Schedule 2 to the bill seeks to insert proposed subsection 140A(5) into the Maritime Act to provide for a similar immunity in relation to tests of security systems on regulated offshore facilities, while proposed subsection 141(4), as set out at item 63 of Schedule 2 to the bill, would introduce a similar immunity in relation to maritime industry participants.^[126]

1.191 Notes to each of these proposed subsections state that a defendant bears an evidential burden in relation to the matters set out under each immunity in respect of a criminal proceeding.

1.192 The committee acknowledges that the immunity provided for under these proposed subsections does not apply in relation to actions that are not done in good faith. However, the committee reiterates that, in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.193 The committee expects that if a bill seeks to provide immunity from civil and criminal liability this should be soundly justified. In relation to proposed subsection 139(4), the explanatory memorandum states:

... this will allow for maritime security inspectors to conduct systems tests in the knowledge that they are not at risk of breaking other laws, such as those relating the bomb hoaxes. This is as long as the maritime security inspector is conducting the test in good faith, and the test does not seriously endanger the health or safety of any person or result in significant loss of, or damage to, property.^[127]

1.194 While acknowledging this explanation, the committee considers that it does not adequately justify why a broad immunity from both civil and criminal liability has been provided in this instance. Similar explanations are provided in relation to proposed subsections 140A(5) and 141(4).

1.195 In addition, the committee has concerns in relation to the reversal of the evidential burden of proof in proposed subsections 139(4), 140A(5), and 141(4). At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[128] 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.

1.196 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. In this instance, the explanatory memorandum provides no explanation for the reversals of the evidential burden of proof in proposed subsections 139(4), 140A(5), and 141(4).

1.197 In light of the above, the committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to provide protected persons with both civil and criminal immunity so that civil and criminal proceedings may only be brought against a protected person in circumstances where lack of good faith is shown; and

• 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 a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[129]

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[117] Schedule1, item 53, subsections 117C(2) and 117C(4); Schedule 2, item 96, 187C(2) and 187C(4) . The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

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

[119] Explanatory memorandum, p. 70.

[120] Explanatory memorandum, p. 71.

[121] Explanatory memorandum, p. 203.

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

[123] Schedule 1, item 34, proposed subsections 80B(3) and (4); Schedule 2, item 64, proposed subsections 145BB(3) and (4). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[124] Explanatory memorandum, pp. 33-34 and 123.

[125] Schedule 2, item 54, proposed subsection 139(4); item 58, proposed subsection 140A(5); item 63, proposed subsection 141(4). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[126] Under section 10 of the Maritime Transport and Offshore Facilities Security Act 2003 a 'maritime industry participant' means a port operator, port facility operator, a ship operator of an Australian or a foreign ship, an offshore industry participant, a contractor who provides services to a person mentioned above, or a person who conducts a maritime related enterprise and is prescribed in the regulations.

[127] Explanatory memorandum, p. 117.

[128] 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.

[129] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.