Export Control (Plants and Plant Products-Norfolk Island) Order 2016 [F2016L01796]-Concluded matters [2017] AUSStaCSDLM 163 (5 October 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
Authorising legislation	Export Control (Orders) Regulations 1982
Department	Agriculture and Water Resources
Disallowance	15 sitting days after tabling (tabled Senate 28 November 2016) The time to give a notice of motion to disallow expired on 27 March 2017
	Notice given on 27 March 2017[1] Notice must currently be resolved by 8 August 2017
Scrutiny principle	Standing Order 23(3)(b) and (a)
Previously reported in	Delegated legislation monitors 1 and 3 of 2017

Insufficient justification of strict liability offences

The committee previously commented as follows:

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 Notices and Enforcement Powers,^[2] 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.

Minister's first response

The Minister for Agriculture and Water Resources advised:

On 1 July 2016 a number of legislative changes came into effect which extended some Commonwealth legislation to Norfolk Island. One of
the Acts extended to Norfolk Island was the Export Control Act 1982.
To support Norfolk Island's $1 million dollar export industry the Export Control (Plants and Plant Products - Norfolk Island) Order 2016 (Norfolk Order) was made under the Export Control Act 1982 to enable the Department of Agriculture and Water Resources to provide certification for exports of plants and plant exports from Norfolk Island.
In order to provide a consistent export regulatory regime between Australia and Norfolk Island and not give undue advantage, it was considered important to maintain consistency between the Export Control (Plants and Plant Products) Order 2011 (Plant Order) and the Norfolk Order. This includes the strict liability offences in sections 9 and 13, which reflect the strict liability offences outlined in sections 44 and 48 of the Plant Order.
The government considers these provisions are consistent with principles outlined in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers 2011 (Guide) as the provisions underpin the Australian export regulatory regime, and to a lesser extent, protect general revenue through the export of plants and plant products.
The penalties for the offences have been set at 20 penalty units for the offence of altering a certificate in section 13 and 50 penalty units for
the offence of issuing a false certificate in section 9. The offences therefore meet the requirement in the Guide that strict liability offences should not exceed 60 penalty units for an individual.
I am aware that the Committee places considerable reliance on explanatory statements to explain legislative instruments... I have requested that, where possible, the department include additional information in explanatory statements providing justification for the use of strict liability offences.

Committee's first response

The committee thanks the minister for his response.

The committee also thanks the minister for the advice that in the future where instruments impose strict liability offences, the Department of Agriculture and Water Resources will include a justification for the use of such offences in the ESs.

The committee also acknowledges that the penalties for the strict liability offences in the order are consistent with the principles outlined in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

However, while the committee understands the desire to provide a consistent export regulatory regime between Australia and Norfolk Island and to not give undue advantage, the minister's response does not explain the reasons for applying strict liability to the offences of issuing a false certificate and altering a certificate without authorisation.

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

Minister's second response

The Minister for Agriculture and Water Resources advised:

As the committee would be aware, when strict liability applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations.
Sections 9 and 13 provide strict liability offences for the issuing of a false certificate and altering a certificate. They have been drafted to ensure the ongoing integrity and consistency of the department's export certification framework. There is a strong public interest in maintaining the integrity of export certification provided by the Department of Agriculture and Water Resources which is absolutely critical to Australia's reputation as a trusted phytosanitary regulator and international trading partner.
Use of false or altered certificates has the potential for negative financial, political and trade impacts on the Norfolk Island and the broader Australian economy. The application of strict liability offences for sections 9 and 13 provides a deterrent to issuing a false or altered certificate, which will result in the continuing maintenance of Australia's international biosecurity and trading status. It can reasonably be expected that an exporter of plants and plant products is aware that only authorised officers may issue or alter certificates.
This approach to applying strict liability offences reflects the policy intent of the Export Control Act 1982 in relation to false trade descriptions
and the penalties applied to the use of false trade descriptions applied
in documentation, and for the unlawful interference with, or forgery of, official marks. Penalties were established and consistent with Commonwealth legislation for offences of this kind. The application of strict liability offences for sections 9 and 13 continues to apply to
the original policy intent of the legislation and is necessary to ensure the integrity of the regulatory regime.
The department considers that the provisions for strict liability offences are consistent with principles outlined in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers 2011. In particular, the department considers the principles that the strict liability offences are consistent with are that the fines are less than
60 penalty units; are appropriate to ensure the integrity of the regulatory regime; and allow the protection of general revenue.
I am aware that the Committee places considerable reliance on explanatory statements to explain legislative instruments. I have requested that, where possible, the department include additional information in explanatory statements providing justification for the use
of strict liability offences.

Committee's second response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes that this information would have been useful in the ES.

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[1] See Parliament of Australia, Disallowance Alert 2017, http://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Regulations_and_Ordinances/Alerts (accessed 21 April 2017).

[2] 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).