Offshore Electricity Infrastructure Legislation Amendment Bill 2022 [2022] AUSStaCSBSD 83 (26 October 2022)

• Offshore Electricity Infrastructure Legislation Amendment Bill 2022
• Strict liability offence120

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Offshore Electricity Infrastructure Legislation Amendment Bill 2022

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	Climate Change, Energy, the Environment and Water
Introduced	House of Representative on 28 September 2022

Strict liability offence^[120]

1.163 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.

1.164 Under general principles of the common law, fault is required to be proven before a person can be found guilty of a criminal offence. This ensures 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 had the intention to engage in the relevant conduct or was reckless or negligent while doing so. As the imposition of strict liability undermines fundamental common 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.^[121] The committee notes in particular that 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.^[122]

1.165 In this instance, the explanatory memorandum provides the following explanation:

This is the same as the equivalent provisions of the Customs Act requiring permission for the use of resources installations or sea installations in the same circumstances. It is appropriate to ensure the integrity of the regime that strict liability applies to this offence. This is particularly the case because these provisions are a principal means of addressing the border security risks posed at offshore electricity installations, which may be installed far from the Australian coast and in remote locations without an Australian Border Force presence. These provisions only have operation for a limited class of persons, being operators of offshore electricity installations.^[123]

1.166 While acknowledging that the offence is intended to ensure the integrity of the offshore infrastructure regime, it is not clear to the committee from the explanation provided why it is necessary to provide for an offence of strict liability to achieve this outcome. The committee's scrutiny concerns in this instance are heightened, noting that the amount payable in relation to this offence significantly exceeds the recommended threshold of 60 penalty units.

1.167 The committee therefore requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to apply strict liability to the offence set out at proposed section 33BA; and

• why it is considered necessary and appropriate to impose a significant penalty of 500 penalty units for failing to comply with proposed subsection 33BA.

1.168 The committee's consideration of the minister's response will be assisted if the response includes reference to the principles set out in the Guide to Framing Commonwealth Offences.

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

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

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

[123] Explanatory memorandum, p. 18.