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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to establish a framework to regulate the nuclear safety
aspects of Australia’s nuclear-powered submarine enterprise.
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Portfolio
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Defence
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Introduced
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House of Representatives on 16 November 2023
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Bill status
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Before the House of Representatives
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2.11 Part 2 of the bill provides for numerous civil penalties and offences relating to nuclear safety and licences. Subclause 18(1) provides that a person who conducts a regulated activity must,[42] so far as is reasonably practicable,[43] ensure nuclear safety when conducting the activity. Subclause 18(4) provides that it is an offence for a person to engage in conduct that is a regulated activity and the conduct results in a contravention of subsection 18(1). The penalty for an individual is 12 years imprisonment or 700 penalty units, or both.
2.12 Further, subclause 18(5) provides that it is an offence for a person to engage in conduct that is a regulated activity, results in a contravention of subsection 18(1), a nuclear safety incident occurs and the person is reckless, or negligent, as to whether the conduct would cause or contribute to the nuclear safety incident. The penalty for an individual is 25 years imprisonment or 1,400 penalty units, or both.
2.13 Subclause 19(1) provides that a person must not conduct a regulated activity if the person does not hold a licence authorising the person to conduct the regulated activity. Subclause 19(3) provides that it is an offence if the person conducts a regulated activity and the person does not hold a licence authorising the person to conduct the regulated activity. The penalty for an individual is 6 years imprisonment or 350 penalty units, or both. The bill also provides for numerous other offences with significant terms of imprisonment (3 or 6 years).[44]
2.14 In Scrutiny Digest 1 of 2024, the committee requested the minister’s advice as to:
• the appropriateness of the penalties proposed in subclauses 18(4), 18(5), 19(3), 20(3), 21(5), 22(3), 24(3) and 25(3); and
• whether these penalties are broadly equivalent to similar offences in Commonwealth legislation and if not, why not.[45]
2.15 The Minister for Defence (the minister) advised that the penalties in the bill were developed having regard to relevant principles in the Guide to Framing Commonwealth Offences, including that significant penalties may be appropriate where the consequences of the commission of the offence are particularly dangerous or damaging. In the context of nuclear safety, ‘the consequences of offending conduct could involve serious harm to the environment, injuries or death, and significant social, economic, diplomatic or strategic harm to Australia’.
2.16 The minister further advised the penalties were developed having regard to existing offences of a similar kind or seriousness, including the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act). However, given the particular circumstances it was considered that the offences and penalties in the ARPANS Act are not appropriate to be reproduced in the bill. Instead, the minister advised that ‘[p]articular penalty amounts have been determined by assessing the relative seriousness of the offence within the legislative scheme, having regard to the classes of persons to which the offence would apply (licence holders, who must be a Commonwealth-related person (subclause 29(1)), and other persons who may be authorised by a licence), and whether the offence involves a nuclear safety incident.’
2.17 The minister advised that the penalty for the most serious criminal offence in the bill, subclause 18(5), which applies where a person engages in conduct that is a regulated activity and a nuclear safety incident occurs, is benchmarked against penalties for industrial manslaughter offences recently enacted in the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 which are broadly commensurate with the seriousness of the offence. The minister also provided further information in relation to penalty amounts for other offences in the bill, which were determined by reference to the seriousness of the offences comparative to the offence in subclause 18(5).
2.18 The committee thanks the minister for this response.
2.19 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the Minister for Defence 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).
2.20 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of the significant penalties for offences in Part 2 of the bill.
2.21 As noted above, subclause 19(1) provides that a person must not conduct a regulated activity if the person does not hold a licence authorising the person to conduct the regulated activity. Subclause 19(3) provides that it is an offence if the person conducts a regulated activity and the person does not hold a licence authorising the person to conduct the regulated activity. Subclause 19(5) provides for exceptions to the offence if the person is not the holder of a licence but is authorised by a licence to conduct the regulated activity, or an exemption granted under section 144 applies to the person in relation to the activity.[48] A defendant bears an evidential burden of proof in relation to these matters.
2.22 Similarly, the evidential burden of proof is reversed for exceptions in subclause 23(5), in relation to an offence for licence holders not complying with licence conditions; and subclause 25(5), in relation to an offence for authorised persons not complying with licence conditions.
2.23 In Scrutiny Digest 1 of 2024, 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 subclauses 19(5), 23(5) and 25(5).[49]
2.24 The minister advised that, in accordance with the Guide to Framing Commonwealth Offences, a matter should only be included in an offence-specific defence where ‘it is peculiarly within the knowledge of the defendant’. In this case, the minister advised that while only Commonwealth-related persons can be licence holders, those licences may authorise other persons and classes of persons to perform regulated activities specified in the licence. Whether a person is authorised by a license or falls within a class of persons specified within a licence will be information that is within the knowledge of a defendant.
2.25 The minister further advised that the Guide to Framing Commonwealth Offences states that a matter should only be included in an offence-specific defence where ‘it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter’. The minister advised that the scale and volume of classes of persons authorised by a licence to conduct regulated activities will vary according to the nature of the activity and identity of the licence holder, and information about whether an individual is either specifically authorised by a licence or within a class of persons authorised by a licence, or exempt from a requirement to be authorised by a licence, will be more readily and cheaply provided by a defendant.
2.26 The minister further advised that the Guide to Framing Commonwealth Offences states that it may be appropriate for a matter to be a defence if ‘the conduct prescribed by the offence poses a grave danger to public health or safety’, and the contraventions of these relevant offences could involve conduct that poses a grave danger to public health or safety and the environment.
2.27 The committee thanks the minister for this response.
2.28 The committee considers that while the information would be within the knowledge of the defendant and it may be easier for the defendant to provide, it is not necessarily peculiarly within the knowledge of the defendant or significantly more difficult for the prosecution to disprove.
2.29 Nevertheless, the committee notes the minister’s advice drawing attention to the context in which the evidential burden of proof is reversed, specifically the potential risk to public health and safety.
2.30 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof under proposed subclauses 19(5), 23(5) and 25(5).
2.31 Part 4, Division 2 of the bill provides for powers relating to ‘monitoring areas’.[52] Clause 40 provides that an inspector may, at any time, enter a monitoring area and exercise monitoring powers to:
• determine whether the Act has been or is being complied with;
• determine whether information provided under or for the purposes of the Act is correct; or
• investigate a nuclear safety incident if, at the time the inspector enters, they do not reasonably suspect that the incident involves a contravention of an offence or civil penalty provision of the Act.
2.32 Monitoring powers include the power to search the monitoring area; examine or observe any activity conducted; inspect, examine, take measurements of or conduct tests on any thing; make any still or moving image or any recording; inspect any document; take extracts from, or make copies of, any such document; and powers relating to operating equipment.[53] Additionally, it includes the power to secure evidential material for up to 72 hours under particular conditions.[54] These powers can be exercised without the consent of any relevant person in relation to the monitoring area,[55] and without a warrant.[56]
2.33 In Scrutiny Digest 1 of 2024, the committee requested the minister’s detailed advice as to whether consideration has been given to including a monitoring warrant regime in Part 4, Division 2 of the bill and, if it was considered not appropriate, why that is the case.[57]
2.34 The minister advised that the ‘unique operating circumstances of the conventionally-armed, nuclear-power submarine enterprise necessitate a departure’ from the monitoring warrant regime principles outlined in the Guide to Framing Commonwealth Offences. The minister advised that due to the operating environment and inherent mobility of Australian submarines, monitoring activities must be undertaken as and when the opportunity presents, and therefore a monitoring warrant scheme would be impractical. The minister considered that a ‘requirement to obtain a warrant to enter those places on each occasion to exercise relevant powers would frustrate the objects of the Bill to promote nuclear safety’.
2.35 The minister advised that it is ‘reasonable for a licence holder who conducts regulated activities in a monitoring area to expect that compliance with the nuclear safety requirements of the Bill will be monitored by suitably qualified and appointed inspectors’.
2.36 The minister further provided information about safeguards that are included in the bill in relation to the monitoring powers, including that inspectors must not be appointed unless the Director-General is satisfied of their competence, technical and other relevant expertise to properly exercise an inspector’s powers. Further, inspectors must exercise their monitoring powers with regard to safety and security. Finally, the bill contains reporting requirements to the Director-General if an inspector exercises seizure powers during monitoring within 28 days. Further, the minister advised that as the new regulator is established, inspectors will be provided with appropriate training and guidance in the exercise of powers, including monitoring powers.
2.37 The committee thanks the minister for this response.
2.38 The committee considers that legislative authority to enter and search premises should always be regarded as an exceptional power. Unless there are exceptional circumstances, entry should only be by genuine and informed consent, or on production of a warrant. In the absence of consent or a warrant, legislation should typically authorise entry only in situations of emergency or threat. However, the committee has previously also considered that there may also be circumstances in which it may be impracticable to obtain a warrant, and that impracticability should be assessed in the context of the situation and by reference to current technology.[59]
2.39 While the minister has stated that it would be impractical to provide for a monitoring warrant regime, the committee considers it would have been helpful if it was explained how it would be impractical (noting that warrants can be obtained by telephone, fax or other electronic means), including by providing examples that illustrate the practical difficulties.
2.40 Nevertheless, the committee notes the minister’s advice that licence holders who conduct regulated activities in a monitoring area can expect that compliance will be monitored by suitably qualified and appointed inspectors.
2.41 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the Minister for Defence 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).
2.42 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing for a monitoring regime which allows for entry and search without a warrant.
2.43 Clause 43 provides for additional powers for an inspector to seize a thing without a warrant where:
• the thing is found during the exercise of a monitoring power under section 41; and
• an inspector reasonably believes that the thing is evidential material; and
• the power to seize the thing needs to be exercised without a warrant because it is not practicable to obtain a warrant or the circumstances are serious and urgent.
2.44 In general, the committee prefers seizure to only be allowed under a warrant, even if search and entry has been authorised in the absence of a warrant. The committee considers that where a bill seeks to confer coercive powers, which includes the seizing of evidential material, the explanatory memorandum should address why it is appropriate, what safeguards exist, and whether the approach taken is consistent with the Guide to Framing Commonwealth Offences.
2.45 In Scrutiny Digest 1 of 2024, the committee requested the minister’s detailed advice as to:
• what is meant by the term ‘not practicable to obtain a warrant’ in subparagraph 43(1)(b)(ii) and what guidance exists for inspectors;
• whether consideration has been given to including remote warrant provisions in relation to clause 43, and if it is not considered appropriate, why not;
• whether consideration has been given to including limits on the use and derivative use of seized material in relation to clauses 43 and 52; and
• whether the bill can be amended to more clearly define the extent of the seizure powers under clauses 43 and 52.[61]
2.46 The minister advised that the term ‘not practicable to obtain a warrant’ is intended to apply in limited circumstances and given the context, this may arise where it would not be practicable for an inspector to obtain a warrant including by telephone, fax or other electronic means or where doing so may be prejudicial to national security.
2.47 The minister advised that consideration was given to including a remote warrant provision in relation to clause 43 and this is ordinarily the starting point for an inspector exercising monitoring powers. The minister clarified that clause 43 only applies in limited circumstances where an investigation warrant is unable to be obtained by any means, because it is not practicable or the circumstances are serious and urgent. The minister explained that the term ‘circumstances are serious and urgent’ is intended to apply to scenarios where it is necessary to seize material to prevent concealment, loss or destruction of the evidential material.
2.48 In relation to use and derivative use of seized material, the minister advised that limits have been considered and are applied in relation to powers exercisable in relation to ‘evidential material’ which is limited to material concerning offence or civil penalty provisions in the bill, and does not encompass material concerning other Commonwealth, state or territory offences.
2.49 In relation to whether the bill can be amended to more clearly define the extent of the seizure powers under clauses 43 and 52, the minister further advised that the Government is committed to ensuring sensible amendments are considered through the Foreign Affairs, Defence and Trade Legislation committee inquiry process and broader legislative process.
2.50 The committee thanks the minister for this response and the explanation on how the provisions are intended to operate, collectively.
2.51 Nevertheless, the committee notes that the power to secure a thing for up to 72 hours without a warrant under clause 42 is subject to the same conditions as the power to seize a thing without a warrant under clause 43 – specifically, that it is not practicable to obtain a warrant or the circumstances are serious and urgent. As such, the committee considers it may be more appropriate to constrain the power to seize a thing to instances in which the power to secure would not appropriately manage the situation.
2.52 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the Minister for Defence 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).
2.53 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of clause 43 which seeks to provide for a power for an inspector to seize a thing without a warrant in particular circumstances.
[40] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Australian Naval Nuclear Power Safety Bill 2023, Scrutiny Digest 4 of 2024; [2024] AUSStaCSBSD 57.
[41] Part 2, subclauses 18(4), 18(5), 19(3), 20(3), 21(5), 22(3), 24(3) and 25(3). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[42] Clause 9 defines ‘regulated activity’ to mean a facility activity, a submarine activity and a material activity, which are further defined in clauses 11, 13 and 14 respectively.
[43] Subclause 5(2) further defines ‘reasonably practicable’.
[44] See subclauses 20(3), 21(5), 22(3), 24(3) and 25(3).
[45] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024 (18 January 2024) pp. 2–4.
[46] The minister responded to the committee’s comments in a letter dated 5 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).
[47] Subclauses 19(5), 23(5) and 25(5). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[48] Clause 144 provides that the Regulator may exempt specified persons from the application of subsection 19(1) or another provision of the Act prescribed by the regulations, in relation to a regulated activity, or the application of a specified licence condition.
[49] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024 (18 January 2024) pp. 4–5.
[50] The minister responded to the committee’s comments in a letter dated 5 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).
[51] Part 4, Division 2. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[52] Part 4, Division 3 of the bill separately deals with powers relating to ‘investigation areas’. Where an inspector reasonably believes that there may be evidential material in an investigation area, the inspector may enter and exercise investigation powers by consent or under warrant.
[53] Clause 41.
[54] Clauses 42 and 44.
[55] Subclause 40(2).
[56] Subclause 40(3).
[57] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024 (18 January 2024) pp. 6–7.
[58] The minister responded to the committee’s comments in a letter dated 5 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).
[59] Senate Scrutiny of Bills Committee, entry and search provisions in Commonwealth legislation (6 April 2000) p. 75.
[60] Part 4, Division 2, clause 43; and Part 4, Division 2, clause 52. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[61] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024 (18 January 2024) pp. 7‑10.
[62] The minister responded to the committee’s comments in a letter dated 5 March 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 4 of 2024).
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