Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2023 [2023] AUSStaCSBSD 118 (2 August 2023)

• Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 202320
• Reversal of evidential burden of proof21

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Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2023^[20]

Purpose	This bill seeks to give effect to Australia’s obligations arising out of the 2009 and 2013 amendments to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972. This bill amends the Environment Protection (Sea Dumping) Act 1981 to: enable a permit to be granted for the export of carbon dioxide streams from carbon dioxide capture processes for the purpose of sequestration into a sub-seabed geological formation; enable a permit to be granted for the placement of wastes or other matter for a marine geoengineering activity for the purpose of scientific research; and make minor consequential and technical amendments.
Portfolio	Climate Change, Energy, the Environment and Water
Introduced	House of Representatives on 22 June 2023

Reversal of evidential burden of proof^[21]

1.31 Section 10C of the Environment Protection (Sea Dumping) Act 1981 (the Act) provides that it is an offence if, otherwise than in accordance with a permit, a person loads controlled material on a vessel, aircraft or platform in Australia or Australian waters for the purpose of dumping or incineration. Item 2 of Schedule 1 to the bill seeks to insert proposed subsection 15(2A) into the Act to create a new defence to the section 10C offence.

1.32 Proposed subsection 15(2A) provides that section 10C does not apply in relation to the loading of controlled material on a vessel, aircraft or platform if:

• the controlled material is carbon dioxide streams from carbon capture processes for sequestration into a sub-seabed geological formation; and

• if the loading is for the purpose of the export of the carbon dioxide streams from Australia to another country; and

• there is a permit in place for that export.^[22]

1.33 Item 17 of Schedule 1 seeks to insert proposed section 10CA, which creates a new offence if a person:

• loads wastes or other matter on a vessel, aircraft or platform in Australia; and

• knows or is reckless as to whether the wastes or other matters will be placed into Australian waters; and

• knows or is reckless as to whether the placement will not be in accordance with a permit.

1.34 Item 25 of Schedule 1 seeks to insert proposed subsection 15(2B) into the Act to create a new defence to the offence under proposed section 10CA. Proposed subsection 15(2B) provides that proposed section 10CA does not apply in relation to loading for the purpose of the placement of wastes or other matter into waters that are not Australian waters, if that placement will be in accordance with a permit granted (by a party other than Australia) in accordance with the London Protocol (the Protocol).

1.35 Similarly, item 18 of Schedule 1 seeks to insert proposed section 10DA, which creates an offence if a person:

• exports wastes or other matter from Australia to another country; and

• knows or is reckless as to whether the wastes or other matter will be placed into Australian waters; and

• knows or is reckless as to whether the placement will not be in accordance with a permit.

1.36 Item 25 of Schedule 1 also inserts proposed subsection 15(2C) into the Act, which creates a new defence to the offence under proposed section 10DA. Proposed subsection 15(2B) provides that proposed section 10DA does not apply in relation to exporting for the purpose of the placement of wastes or other matter into waters that are not Australian waters, if that placement will be in accordance with a permit granted (by a party other than Australia) in accordance with the Protocol.

1.37 The offence under section 10C of the Act and the offences under proposed sections 10CA and 10DA all carry maximum penalties of up to 10 years imprisonment or 2,000 penalty units in the case of seriously harmful material and, in any other case, up to 1 year imprisonment or 250 penalty units. A defendant would bear the evidential burden of proof in relation to the defence introduced by proposed subsections 15(2A), 15(2B) and 15(2C) respectively.^[23]

1.38 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.

1.39 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[24]

1.40 The explanatory memorandum states:

Existing subsection 15(4) has the effect that a person who seeks to rely on the exception at new subsection 15(2A) bears an evidential burden in relation to the matters in that subsection. The reversal is justified in these instances, as the matter to be proved (that is, whether the person holds a permit) is a matter that would be peculiarly in the knowledge of the defendant. In the event of a prosecution, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. The reversal in these circumstances is consistent with the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Commonwealth Guide to Framing Offences).^[25]

1.41 The explanatory memorandum provides a similar explanation to the above in relation to proposed subsections 15(2B) and 15(2C).^[26]

1.42 In this instance, it is not apparent that the relevant matters would be peculiarly within the defendant's knowledge, or that it would be more difficult or costly for the prosecution to establish the matters than for the defendant to establish them. For example, the committee considers that the prosecution would be able to identify whether a permit has been granted for the purpose of loading controlled material on a vessel, aircraft or platform for the purpose of export from Australia to another country and therefore it is not peculiarly within the defendant's knowledge.

1.43 The committee also considers that the explanatory memorandum has not sufficiently justified why it is significantly more costly or difficult for prosecution to disprove this matter, particularly in the case of the defence under proposed subsection 15(2A) as such a permit would be granted in Australia by a minister and would be identifiable. Even in the instance of the defences under proposed subsections 15(2B) and 15(2C), where permits for the placement of wastes may be issued by parties to the Protocol other than Australia, it is unclear to the committee how the knowledge of a permit is peculiarly within the defendant's knowledge and is significantly more costly or difficult for prosecution to disprove.

1.44 As the explanatory materials do not adequately address this issue, the committee requests the minister's detailed justification as to why it is proposed to introduce subsection 15(2A) as an exception to the section 10C offence in the Environment Protection (Sea Dumping) Act 1981, with the consequence that the defendant bears the evidential burden of proving an exception. The committee also requests the minister's detailed justification as to why the defendant bears the evidential burden of proving an exception under subsections 15(2B) and 15(2C) in relation to the offences under sections 10CA and 10DA respectively.

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[20] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 118.

[21] Schedule 1, item 2, proposed subsection 15(2A). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[22] Proposed subsection 15(2A).

[23] Environment Protection (Sea Dumping) Act 1981, subsection 15(4).

[24] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p. 50.

[25] Explanatory memorandum, p. 7.

[26] Explanatory memorandum, pp. 16-17.