Export Control (Plants and Plant Products-Norfolk Island) Order 2016 [F2016L01796]-Response required [2017] AUSStaCSDLM 10 (8 February 2017)

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Instrument	Export Control (Plants and Plant Products—Norfolk Island) Order 2016 [F2016L01796]
Purpose	Extends export control legislation relevant to plant and plant products to Norfolk Island
Last day to disallow	27 March 2017
Authorising legislation	Export Control (Orders) Regulations 1982
Department	Agriculture and Water Resources
Scrutiny principle	Standing Order 23(3)(b) and (a)

Insufficient justification of strict liability offences

Sections 9 and 13 of Export Control (Plants and Plant Products—Norfolk Island) Order 2016 [F2016L01796] (the order) create strict liability offences of issuing a false certificate and altering a certificate without authorisation. The offences are subject to 50 and 20 penalty units, respectively (currently $9000 and $3600).

Given the potential consequences of strict liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation. The committee notes that in this case the ES provides no explanation of or justification for the framing of the offence.

The committee draws the minister's attention to the discussion of strict liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,^[1] as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

The committee requests the advice of the minister in relation to the above.

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that the definitions of phytosanitary certificate and re-export phytosanitary certificate incorporate the International Plant Protection Convention of the Food and Agriculture Organization of the United Nations (IPPC ). However, neither the text of the order, nor the ES, states the manner in which the IPPC is incorporated.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

The committee requests the advice of the minister in relation to the above.

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^[1] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications /Pages/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 31 January 2017).