Export Control Amendment (Streamlining Administrative Processes) Bill 2022

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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Export Control Amendment (Streamlining Administrative Processes) Bill 2022

Purpose	This bill seeks to amend the Export Control Act 2020 to ensure an appropriately flexible and fit-for-purpose information-sharing framework, and to improve administrative processes and clarify the intent of a provision of the Act.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 30 November 2022
Bill status	Before the Senate

Privacy
Significant matters in delegated legislation^[1]

2.2 Schedule 1 to the bill seeks to set out new information disclosure requirements for the Export Control Framework. The explanatory memorandum states that the intention of Schedule 1 is to provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards.^[2] Much of the detail as to how the new information disclosure scheme would work is proposed to be set out in delegated legislation.

2.3 In Scrutiny Digest 1 of 2023 the committee requested the minister's more detailed advice in relation to why it is both necessary and appropriate to include new rule-making powers in proposed section 397E, proposed paragraph 397F(1)(e), and in the definition of 'entrusted person' in the proposed amendment to section 12.

2.4 The committee also requested the minister's advice in relation to the appropriateness of amending the bill to provide enforceable consultation requirements in relation to these new rule-making powers.^[3]

2.5 The minister advised that the proposed rule-making power to prescribe other Commonwealth officers as an ‘entrusted person’ is necessary to ensure that non-departmental officers can be authorised to use and disclose information in appropriate circumstances, such as when an officer has been seconded to an inter-agency taskforce.

2.6 In relation to the broad rule-making power at proposed section 397E, the minister advised that one of the reasons for the rule-making power in proposed section 397E is to cover those classes of person who only have functions and powers under the various export control rules, but who are not mentioned in the Export Control Act 2020 (the Export Act). For example, the minister advised that qualified marine surveyors may be required to exercise information disclosure powers but do not have functions or powers specified within the Export Act. Qualified marine surveyors perform functions and powers pursuant to the Export Control (Plants and Plant Products) Rules 2021 in carrying out bulk vessel surveys for the purpose of deciding whether the vessel is suitable to transport prescribed plants or plant products but do not carry out functions under the Act or any other legislative instrument made under the general Export Control Framework.

2.7 The minister further advised that the broad rulemaking power set out at proposed section 397E is necessary given the structure of the export control legislation, which provides for the rules to specify the detailed arrangements for each export commodity with only high-level information included within the Act itself.

2.8 Finally, the minister advised that it is not necessary to provide enforceable consultation requirements in relation to the new rulemaking powers, given the consultation requirements that are already present in the Legislation Act 2003.

2.10 However, the committee remains concerned about the breadth of the information disclosure powers proposed to be introduced by the bill, and by the level of detail which the bill proposes to include within delegated legislation. In particular, the committee notes that the bill would authorise non-Commonwealth employees to exercise the extensive new information disclosure powers,^[5] and that the bill would authorise disclosure in a wide variety of circumstances, including to foreign governments,^[6] and in circumstances specified within the rules.^[7]

2.11 The committee notes that the minister's response did not address the use of information disclosure powers by non-Commonwealth employees.

2.12 Further, while acknowledging that some degree of flexibility is required in order to respond appropriately to rapidly changing circumstances, the committee does not consider that the minister's explanation adequately addresses why broad rule making powers, such as those set out at proposed section 397E, are either necessary or appropriate in this context. As previously noted, the committee considers that the justification provided in the explanatory memorandum is not sufficient. That is, the committee considers that the argument that new rulemaking powers are necessary due to a general uncertainty of future regulatory needs is overbroad in the context of the Export Act. The committee notes that the minister's response did not fully address this aspect of the committee's concerns.

2.13 The committee thanks the minister for their inclusion of helpful examples outlining the types of persons who may be covered by rules made under proposed section 397E. However, the committee considers that it would be possible to allow the rules to cover classes of person who only have functions and powers under the various export control rules while still maintaining appropriate limits on any new rulemaking powers.

2.14 In relation to the minister's advice on the consultation requirements within the Legislation Act 2003, the committees notes that it generally looks favourably on the inclusion of enforceable consultation requirements beyond the default requirements set out within that Act when significant matters are proposed to be included within delegated legislation. The committee's concerns are heightened in this instance given that the detail proposed to be included within delegated legislation is proposed to be included within rules made by the Secretary, rather than within regulations.

2.15 The committee requests the minister's further justification in relation to allowing non-Commonwealth employees to exercise broadly drafted information disclosure powers. The committee's consideration of this justification will be assisted if the minister outlines what safeguards are in place in relation to this aspect of the new disclosure powers, and whether those safeguards are contained in law or policy.

Reversal of the evidential burden of proof^[8]

2.16 Item 12 of Schedule 1 to the bill seeks to insert proposed section 397G into the Export Act to provide that it is an offence to use or disclose protected information.

2.17 Proposed subsection 397G(3) provides that this offence does not apply if the use or disclosure of the information is required, or authorised by the Export Act or a law of the Commonwealth, or a state or territory law that is prescribed by the rules. Similarly, proposed subsection 397G(4) provides that the offence does not apply if the use or disclosure occurred in good faith and was undertaken in the performance of functions and duties or assisting another person in the performance of their functions or duties.

2.18 A defendant would bear the evidential burden of proof in relation to both of these defences.

2.19 In Scrutiny Digest 1 of 2023 the committee requested the minister's advice as to 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.^[9]

2.20 The committee suggested that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. The committee also requested the minister's advice in relation to this matter.^[10]

2.21 In relation to the offence-specific defence at proposed subsection 397G(3), the minister advised that, in circumstances where a defendant used or disclosed information in reliance on a law, information about which law they were purporting to rely on is peculiarly within the knowledge of the defendant.

2.22 Similarly, the minister advised that the offence-specific defence at proposed subsection 397G(4) is justified because information about whether the defendant acted in good faith is information which is peculiarly within the knowledge of the defendant who would be expected to understand their reasons for disclosure as part of their employment duties. The minister considered that whether a defendant has acted in good faith would require consideration of the defendant’s subjective belief about why they considered they were authorised to use or disclose the information when performing their functions or duties or assisting another person in the performance of their functions or duties.

2.23 The minister also noted that these provisions are consistent with similar provisions which are proposed to be introduced into the Biosecurity Act 2015 by the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022, and that this consistency is important to ensure that departmental officers can work across both legislative regimes.

2.25 However, the committee does not agree that information about whether a particular disclosure was made in accordance with a certain Commonwealth or state or territory law could be said to be peculiarly within the knowledge of a defendant. Rather, this appears to be a matter of law which the prosecution could readily ascertain. The committee therefore continues to have concerns in relation to the reversal of the evidential burden of proof under proposed subsection 397G(3).

2.26 The committee notes that minister's advice in relation to proposed subsection 397G(4).

2.27 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof under proposed subsection 397G(3).

2.28 In relation to the reversal of the evidential burden of proof under proposed subsection 397G(4), the committee makes no further comment.

[1] Schedule 1, item 12. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (iv).

[4] The minister responded to the committee's comments in a letter dated 21 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

[5] For example, proposed subsection 388(2) of the bill would allow 'third-party authorised officers' and 'nominated export permit issuers' to exercise these powers.

[8] Schedule 1, item 12, proposed subsections 397G(3) and (4). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[11] The minister responded to the committee's comments in a letter dated 21 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

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

Export Control Amendment (Streamlining Administrative Processes) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 36 (8 March 2023)

Chapter 2

Commentary on ministerial responses

Privacy
Significant matters in delegated legislation^[1]

Reversal of the evidential burden of proof^[8]