National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 [F2017L00209]-Concluded matters [2017] AUSStaCSDLM 203 (14 June 2017)

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Instrument	Jervis Bay Territory Marine Safety Ordinance 2016 [F2016L01756]
Purpose	Provides safety protections and navigation requirements for the Jervis Bay Territory similar to those applicable in NSW waters under the marine safety legislative regime established by the New South Wales Marine Safety Act 1998
Last day to disallow	15 sitting days after tabling (tabled Senate 21 November 2016) The time to give a notice of motion to disallow expired on 20 March 2017 Notice given on 20 March 2017[1] Notice must currently be resolved by 19 June 2017
Authorising legislation	Jervis Bay Territory Acceptance Act 1915
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a), (b) and (d)
Previously reported in	Delegated legislation monitors 1 and 3 of 2017

Matter more appropriate for parliamentary enactment

The committee previously commented as follows:

The Jervis Bay Territory Marine Safety Ordinance 2016 [F2016L01756] (the ordinance) creates a number of offences that carry terms of up to 20 months imprisonment or impose penalties of up to 100 penalty units (currently $18 000).^[2]

The committee notes that the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) states that regulations should not be authorised to impose fines exceeding 50 penalty units or create offences that are punishable by imprisonment. The Guide further notes:

Almost all Commonwealth Acts enacted in recent years that authorise the creation of offences in subordinate legislation have specified the maximum penalty that may be imposed as 50 penalty units or less. Penalties of imprisonment have not been authorised.^[3]

The ES to the ordinance, while acknowledging these statements in the Guide, states:

The primary policy goal of the Ordinance is to provide a similar level of protection of vessel owners, operators and other people in JBT [Jervis Bay Territory] waters, to that already enjoyed by people in the adjoining NSW waters. It is desirable for a person to be subject to a comparable penalty for an offence committed in JBT waters as for the same offence committed a few kilometres away in NSW waters. Consequently, in some instances in the Ordinance, consistent with NSW legislation, penalties of greater than 50 penalty units or penalties involving terms of imprisonment are imposed.
The scope of the Ordinance-making power in section 4F of the Acceptance Act is very broad (Ordinances may be made for the peace, order and good government of the Territory) and it may have been a Parliamentary intention that Ordinances be the primary vehicle of legislating for the JBT. Finally, other JBT Ordinances contain offence provisions, some with penalties including terms of imprisonment (see, for example, the Jervis Bay Territory Emergency Management Ordinance 2015, section 24).
In each instance in the Ordinance, where a penalty involves a term of imprisonment or a penalty of greater than 50 penalty units, the description of the section in the Explanatory Statement notes the comparable provision in NSW legislation that the penalty is based.
The Attorney-General’s Department was consulted in relation to penalties during the development of the Ordinance.

The committee acknowledges that the ordinance-making power in the Jervis Bay Territory Acceptance Act 1915 (Acceptance Act) is broad in scope. However, it does not consider that the information provided in the ES adequately justifies the imposition of terms of imprisonment in the absence of an express power to do so.

In this regard, the committee notes advice received from the Office of Parliamentary Counsel in 2014 that:

[t]he types of provisions...that should be included in regulations include provisions dealing with offences and powers of arrest, detention, entry, search or seizure. Such provisions are not authorised by a general rule-making power (or a general regulation-making power). If such provisions are required for an Act that includes only a general rule-making power,
it would be necessary to amend the Act to include a regulation-making power that expressly authorises the provisions.^[4] (emphasis added)

The committee further notes that, while other JBT ordinances contain offence provisions, the primary source of offence provisions for the JBT (and of laws for the JBT generally) appears to be laws of the Australian Capital Territory, by virtue of section 4A of the Acceptance Act. Noting that the Acceptance Act was enacted in 1915, the committee is interested in whether there is now a need for offences carrying terms of imprisonment to be created specifically for the JBT; and whether consideration should be given to amending the Acceptance Act to do so directly or

to provide an express power to authorise the inclusion of such provisions in JBT ordinances.

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

Minister's first response

The Minister for Local Government and Territories advised:

As a general comment, I note that Ordinances made for the external territories and the Jervis Bay Territory (JBT) are quite unlike other types of delegated legislation at the Commonwealth level. Such Ordinances generally deal with state-type matters, including matters relating to the protection of life, which are not normally dealt with in other types of Commonwealth delegated legislation. Consequently, deviation from strict compliance with Commonwealth guidance framed in the context of general Commonwealth-level delegated legislation is in some cases justifiable.
Having considered this matter in some detail, at this time I do not think
it is necessary to amend the Jervis Bay Territory Acceptance Act 1915
(the Acceptance Act). I have instructed my Department to amend the explanatory statement for the Marine Ordinance to provide more robust justifications in relation to the matters mentioned by the Committee.
My response is enclosed.
Reference Sections: 19, 24, 32, 36, 59, 60, 113
The Jervis Bay Territory (JBT) is a Commonwealth administered territory that has no state legislature. Section 4A of the Jervis Bay Territory Acceptance Act 1915 (the Acceptance Act) provides that the laws (including the principles and rules of common law and equity) in force in the ACT are, so far as they are applicable to the JBT and are not inconsistent with an Ordinance made under the Act, in force in the JBT as if the JBT formed part of the ACT. Such laws consist of state and local government-type laws made by the ACT Legislative Assembly, which are subject to the scrutiny of the ACT legislature (and apply to the JBT without Commonwealth parliamentary scrutiny).
Section 4F of the Acceptance Act empowers the Governor-General to 'make Ordinances for the peace, order and good government of the Territory'.
In contrast, the Delegated Legislation Monitor (which in turn refers to advice received from the Office of Parliamentary Counsel (OPC) in 2014) refers to a 'general regulation-making power'. As noted in the OPC advice, a 'general regulation-making power' is one that authorises the making of regulations 'required or permitted' or 'necessary or convenient' (see paras 9 to 18 of Drafting Direction No.3.8-Subordinate Legislation (DD3.8), which is referred to in the 2014 advice from OPC). Such a law-making power is different in scope from the power to make laws 'for the peace, order and good government' of a territory. The latter is not aptly described as a 'general regulation-making power' as that term is used in the Delegated Legislation Monitor, the 2014 OPC advice or DD3.8. Instead, a power granted in these terms is a plenary power. Although some limits apply to such a power, a grant of power in these terms includes the power to prescribe offences that are punishable by imprisonment.
Ordinances are made by the Governor-General under section 4F of the Acceptance Act to complement the ACT laws that are applied in the JBT (which mainly pertain to state or local government-type issues). Such Ordinances are generally made to account for the JBT's unique legal and administrative arrangements or to address matters, which may not be dealt with by ACT laws applied in the JBT. The established practice to address such legislative gaps is to base any new Ordinance on relevant NSW law, given the proximity of the JBT to NSW.
In practice, the Ordinance-making power under the Acceptance Act is rarely used. Over the past 101 years, only six primary Ordinances have been made in respect of the JBT, three are modelled on NSW legislation (which include offence provisions).
In relation to the Marine Ordinance, the ACT does not have a coastal marine environment to regulate so there is no ACT coastal marine law that applies in the JBT. The policy goal behind the making of the Marine Ordinance is to put in place a legal regime covering use of the JBT marine environment similar to that applying across the JBT-NSW maritime border. The Marine Ordinance offence provisions and penalties mirror those in the Marine Safety Act 1998 (NSW). The Marine Safety Act 1998, including its penalty provisions, were scrutinised by the elected NSW legislature.
Other recent JBT Ordinances have been made which mirror NSW legislation, namely the Jervis Bay Territory Rural Fires Ordinance 2013 and the Jervis Bay Territory Emergency Management Ordinance 2015. These Ordinances also replicate the offence provisions in the mirrored NSW legislation, and carry penalties of imprisonment.
In summary, JBT Ordinances generally apply state-type law and are a rarely used tool. Offence provisions and penalties mirror NSW requirements to provide similar protections on both sides of a contiguous border. Penalties of imprisonment are exceptional, and engaged only for the most serious offences including endangering life. The Marine Safety Act 1998 (NSW) was scrutinised by the elected NSW legislature.
For the reasons set out above, I have instructed my Department to amend the explanatory statement for the Marine Ordinance to provide a more rigorous justification for the provisions of the Ordinance that provide for penalties in excess of 50 penalty units and or terms of imprisonment.

Committee's first response

The committee thanks the minister for her response.

The committee notes the minister's advice that the offence provisions of the ordinance mirror NSW legislation. While the committee understands the desire to provide similar protection on both sides of a contiguous border, the scrutiny of such provisions by the NSW legislature does not provide sufficient assurance that the provisions meet this committee's expectations with respect to the inclusion of offence provisions in Commonwealth delegated legislation.

The committee also notes the minister's undertaking to amend the ES to provide

a justification for the provisions of the ordinance that provide for penalties in excess of 50 penalty units and/or terms of imprisonment. However, as the minister's response does not provide information about the content of this justification,

the committee is unable to conclude that the inclusion of such penalties is not a matter that is more appropriate for parliamentary enactment.

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

Minister's second response

The Minister for Local Government and Territories advised:

The Department of Infrastructure and Regional Development has prepared a replacement explanatory statement for the Ordinance addressing the Senate Standing Committee on Regulations and Ordinances' (the Committee) scrutiny concerns detailed in Delegation legislation monitor 3 of 2017.
As soon as practical, the Department will register the approved explanatory statement on the Federal Register of Legislation, which will cause its tabling by the Office of Parliamentary Counsel.
I have enclosed an advance copy of the approved explanatory statement for consideration by the Committee.

The replacement ES states:

Legislative Framework
The JBT is a Commonwealth administered territory and has no state legislature. Section 4A of the Acceptance Act applies to the JBT the laws (including the principles and rules of common law and equity) in force from time to time in the ACT are [sic], so far as they are applicable to the JBT and are not inconsistent with an Ordinance made under the Acceptance Act. Such laws consist of state and local government-type laws made by the ACT Legislative Assembly, and are subject to the scrutiny of the ACT legislature. They apply to the JBT without Commonwealth parliamentary scrutiny.
Although the laws in force in the JBT are generally those of the ACT, the Acceptance Act provides a framework within which the Governor-General may make Ordinances to adjust and complement the applied ACT laws. Specifically, section 4C of the Acceptance Act permits an applied ACT law to be amended or repealed by an Ordinance made under the Acceptance Act, or a law made under such an Ordinance, and subsection 4F(1) confers on the Governor-General a plenary power to make Ordinances for the peace, order and good government of the JBT.
It is rare for Commonwealth legislation to confer a plenary power to make delegated legislation. Such conferrals are very different to the general regulation-making powers commonly found in Commonwealth legislation, which permit the making of regulations as 'required or permitted' or 'necessary or convenient'. They are used by Parliament to indicate that, within the relevant subject matter, there is to be very little limitation on what can be provided for. They are generally only used for the external territories and the JBT, where the relevant Ordinances deal with state-level matters not normally dealt with in other types of Commonwealth legislation. The Commonwealth Parliament recently enacted a provision similar to s 4F of the Acceptance Act for the governance of Norfolk Island: section 19A of the Norfolk Island Act 1979 (Cth) (which was enacted in 2015).
Ordinances made by the Governor-General under subsection 4F(1) of the Acceptance Act are generally made to account for the JBT's unique legal and administrative arrangements or to address matters not dealt with by ACT laws applied in the JBT. The established practice to address such legislative gaps is to base any new Ordinance on relevant NSW law, given the close proximity of the JBT to NSW land and water. In practice, the Ordinance-making power in subsection 4F(1) of the Acceptance Act is rarely used. Over the past 101 years, only six primary Ordinances have been made in respect of the JBT, three of which are modelled on NSW legislation.
Because the ACT does not have a coastal marine environment, there is no ACT coastal marine law that can be applied in the JBT. This Ordinance establishes a marine safety regime for the JBT marine environment that is similar to the regime applying across the JBT-NSW maritime border, and which draws on both NSW marine safety legislation and the Cth National Law...
Offences and Penalties
The primary policy goal of the Ordinance is to provide a similar level of protection of vessel owners, operators and other people in JBT waters to that already enjoyed by people in the adjoining NSW waters. As such, it is desirable for a person to be subject to similar offences and penalties
on each side of the adjoining JBT / NSW border. In order to achieve this policy objective, the Ordinance contains offences and impose[s] penalties exceeding 50 penalty units and terms of imprisonment. The Acceptance Act does not contain any offence provisions.
While it is generally more appropriate to create offence provisions imposing penalties greater than 50 penalty units or terms of imprisonment in Acts of Parliament rather than in subordinate legislation, it is not appropriate to create these offence provisions in the Acceptance Act or other territory governance Acts. The reason for this is that imposing penalties in the Acceptance Act may change the basic framework of JBT's legislative scheme and unintentionally limit the scope of the Ordinance making power.
The plenary power provided in the Acceptance Act authorises Ordinances to create offences and does not limit the size or nature of the penalties that can be imposed. This power is inconsistent with the general Commonwealth policy that delegated legislation should not be authorised to impose penalties of imprisonment or fines exceeding 50 penalty units (see paragraph 3.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011 edition) (the Guide)).
The Acceptance Act does not place any limitation on the types of penalties that may be imposed by Ordinances made under that Act because Ordinances made for the JBT (together with Ordinances made for other territories) are quite unlike other types of delegated legislation at the Commonwealth level. Ordinances operate within the framework of ACT law applied by the Acceptance Act and are used to adjust and (when necessary) make State-type laws within the JBT. In some circumstances, such legislation will be required to prohibit conduct that is so serious that the imposition of penalties of imprisonment, or above 50 penalty units, will be appropriate. A similarly broad Ordinance-making power was enacted by the Commonwealth Parliament recently (see section 19A of the Norfolk Island Act 1979 (Cth), enacted in 2015).
In this context, it is relevant to note that, under section 4L of the Acceptance Act and section 118(2) of the Ordinance, offence provisions cannot be created in regulations, rules or by-laws made under the Ordinance.
Certain offences created by the Ordinance are of a sufficiently serious nature that they warrant the imposition of penalties of greater than 50 penalty units and/or penalties involving terms of imprisonment. Specifically, sections 19, 24, 31, 32, 36, 59, 60 and 113 of the Ordinance provide maximum penalties in excess of 50 penalty units and/or a term of imprisonment, to reflect the seriousness of the conduct to be deterred. These penalties are engaged only for the most serious offences giving rise to a danger of harm or death to another person, or damage to property of another person or the environment.
Penalties similar to those imposed by this Ordinance have been imposed by the provisions of other Ordinances made under the Acceptance Act. These provisions include sections 14, 15 and 16 of the Jervis Bay Territory Marine Safety Ordinance 2007 (2007 Ordinance), and section 24 of the Jervis Bay Territory Emergency Management Ordinance 2015.
During the development of the Ordinance, the Attorney-General's Department and the Australian Federal Police were consulted specifically in relation to penalty and imprisonment provisions. Affected persons including JBT business operators and the Wreck Bay community were also consulted and were given adequate notice that these offence provisions would be introduced.

Committee's second response

The committee thanks the minister for her response and has concluded its examination of the above.

The committee also thanks the minister for the informative replacement ES which the committee notes has been registered on the Federal Register of Legislation.

The committee acknowledges JBT's unique legal and administrative arrangements and notes that the replacement ES provides detailed justifications for the provisions of the ordinance that provide for penalties in excess of 50 penalty units and/or terms of imprisonment.

The committee previously commented as follows:

The ordinance creates three strict liability offences:

• Subsection 87(6) creates a strict liability offence for failing: to show, or demonstrate to a police officer the operation of, machinery or equipment on a vessel; to give a police officer your name, residential address, date of birth or evidence of your identity; or, where a police officer boards a vessel,

to stop or manoeuvre the vessel as required by the police officer;

• Subsection 105(4) creates a strict liability offence for failing to take reasonable steps to facilitate a police officer to board a vessel; and

• Section 113 creates a strict liability offence for breaching a condition of an exemption under sections 111 or 112 of the Ordinance.

The first two offences carry penalties of 50 penalty units (currently $9000), and the offence under section 113 carries a penalty of 60 penalty units (currently $10 800). Each of the offences allows a defence of honest and reasonable mistake of fact

to be raised.

With respect to these offences, the ES to the ordinance states:

Failing to assist the police by not demonstrating the operation of equipment, identifying oneself, or manoeuvring a vessel as directed, may hinder the police in their ability to enforce the Ordinance, and may compromise the safety of the person, the police officer or the public. For this reason, this offence has been prescribed as a strict liability offence...
The offence applies if a person does not provide a safe and practicable way for police to board the vessel. If boarding of the vessel is not facilitated, police will be unable to carry out their duty to enforce compliance with the Ordinance, which is why the offence has been prescribed as a strict liability offence...
Breaching a condition could compromise public safety, or the safety of individuals on a vessel, which is why this offence has been designated as a strict liability offence. People operating a vessel under a conditional exemption are placed on notice to avoid breaching any condition of that exemption.

Given the potential consequences of strict liability offence provisions for the defendant, the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation. While the ES establishes why offences are needed to protect public and individual safety and to enable police to enforce compliance with the ordinance, the ES does not provide sufficient detail to justify

the framing of the offences as strict liability offences. In this respect, the committee notes the following guidance in relation to framing strict liability offences contained in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers (the Guide):

Application of strict or absolute liability to all physical elements of an offence is generally only considered appropriate where all of the following apply.
• The offence is not punishable by imprisonment.
• The offence is punishable by a fine of up to:
‒ 60 penalty units for an individual (300 for a body corporate) in the case of strict liability, or
‒ 10 penalty units for an individual (50 for a body corporate) in the case of absolute liability.
• The punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring certain conduct.
• There are legitimate grounds for penalising persons lacking fault; for example, because he or she will be placed on notice to guard against the possibility of any contravention. If imposing absolute liability, there should also be legitimate grounds for penalising a person who made a reasonable mistake of fact.^[5]

The committee considers that the ES has not justified how the framing of these offences as strict liability offences is likely to enhance the effectiveness of the enforcement regime under the ordinance in deterring certain conduct or is otherwise appropriate. Further, in respect of the offences under subsections 87(6) and 105(4), the ES has not demonstrated that there are legitimate grounds for penalising persons lacking fault.

The committee draws the minister's attention to the discussion of strict liability offences in the Guide 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 Local Government and Territories advised:

Subsections: 87(6) and 105(4) and section 113
I have instructed my Department to amend the explanatory statement
for the Marine Ordinance to provide a more comprehensive justification for the three strict liability offence created by these sections, addressing the matters set out in, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). As noted above, these justifications are that:

• the Marine Ordinance is a state-type law;

• JBT has a contiguous border with NSW;

• strict liability provisions mirror those of the Marine Safety Act 1998 (NSW), which regulates marine safety in NSW waters, thus ensuring the same legal regime applies on either side of a contiguous marine border between the JBT and NSW;

• the Marine Safety Act 1998 (NSW), against which the Marine Ordinance provisions were framed was scrutinised by the elected NSW legislature; and

• the Marine Ordinance is subject to the scrutiny of the Commonwealth legislature.

Committee's first response

The committee thanks the minister for her response.

The committee notes the minister's advice that the strict liability provisions of the ordinance mirror NSW legislation. While the committee understands the desire

to ensure the same legal regime applies on either side of a contiguous border,

the scrutiny of such provisions by the NSW legislature does not provide sufficient assurance that the provisions meet this committee's expectations with respect to the inclusion of strict liability offence provisions in Commonwealth delegated legislation.

The committee also notes the minister's undertaking to amend the ES to provide a justification for the strict liability offence provisions of the ordinance. However,

as the minister's response does not provide information about the content of this justification, the committee is unable to conclude that these offences do not unduly trespass on personal rights and liberties in accordance with its scrutiny

principle 23(3)(b).

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

Minister's second response

The replacement ES provided by the Minister for Local Government and Territories states:

Strict liability offences
Subsections 87(6), 105(4) and section 113 of the Ordinance create strict liability offences. Strict liability removes the requirement that the prosecution prove the fault element of an offence, which would otherwise attach to a physical element of that offence. The application of strict liability in relation to these particular offences is appropriate, noting that:

• the penalties for the relevant offences do not include imprisonment or exceed 60 penalty units;

• for these offences, strict liability is likely to significantly enhance the effectiveness of the enforcement regime in deterring certain conduct;

• it is necessary to ensure the integrity of the regulatory regime in question;

• there are legitimate grounds for penalising persons lacking fault, eg, because he or she will be placed on notice to guard against the possibility of any contravention;

• there is general public support and acceptance for both the measure and the penalty.

Strict liability is imposed in respect of limited offences for specific reasons. These reasons include public safety and the public interest and ensuring that the regulatory scheme is observed where the sanction of criminal penalties is justified. They also arise in a context where a defendant can reasonably be expected, because of his or her involvement in marine activities, to know what the requirements of the law are, and the mental, or fault, element can justifiably be excluded.
The general rationale for making these offences strict liability offences is that there is a community expectation that people will be aware of and comply with their marine safety obligations. For example, a person who drives a powered vessel for recreational purposes at a speed of 10 knots or more must be aged 12 years or over and have a current general boat licence. To be granted a general boat licence a person is required to undertake a mandatory knowledge test, including marine safety requirements, and provide evidence of practical boating experience. Accordingly, when in charge of a powered vessel, vessel operators are expected to be aware of their marine safety responsibilities and the obligations they owe to their passengers and the wider community in the JBT marine environment.
For strict liability offences in this Ordinance, the prosecution will have to prove only the conduct of the accused. However, where the accused produces evidence of an honest and reasonable, but mistaken, belief in the existence of certain facts which, if true, would have made that conduct innocent, it will be incumbent on the prosecution to establish that there was not an honest and reasonable mistake of fact.
Subsections 87(7) and 105(5) of the Ordinance also provide the strict liability offence 'specific defence' of 'reasonable excuse'...

Committee's second response

The committee thanks the minister for her response and has concluded its examination of the above.

The committee previously commented as follows:

Scrutiny principle 23(3)(b) of the committee's terms of reference requires the committee to ensure that an instrument does not unduly trespass on personal rights and liberties. This principle requires the committee to ensure that where instruments reverse the onus of proof for persons in the their individual capacities, this infringement on well-established and fundamental personal legal rights is justified.

Subsections 15(2); 28(2); 30(8); 41(2); 47(4); 71(1) and (2); 87(7); and 105(5) of the ordinance provide for a number of defences against liability to offences relating to operating a vessel without a current boat driving licence; contravening a safe loading requirement; keeping all parts of the body within a vessel while underway; unauthorised use of an emergency patrol signal; lifejacket requirements; failure to comply with a direction relating to the conduct of person; failure to comply with monitoring powers relating to vessels and premises; and non-compliance with the requirement to facilitate boarding.

Sections 108 and 110 also provide exemptions from liability to various offences in the ordinance for certain activities and for persons assisting Australian Defence Force or the naval, military or air forces of another country.

In relation to the above provisions the defendant will bear the evidential burden in relation to the matters to make out the defences and exemptions.^[6]

While the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter) rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the burden of proof to be justified. The ES to the ordinance does not explicitly address the reversal of the evidential burden of proof.

The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if the ES explicitly addresses relevant principles as set out in the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[7]

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

Minister's first response

The Minister for Local Government and Territories advised:

Sections: 108 and 110 and subsections 15(2); 28(2); 41(2); 47(4); 71(1) and (2); and 105(5)
I have instructed my Department to amend the explanatory statement for the Marine Ordinance to provide a more robust justification for the reversal of the burden of proof contained in each of the provisions above, addressing the matters set out in the Guide each of the detailed sections. As noted above the justifications are that:

• the Marine Ordinance is a state-type law;

• JBT has a contiguous border with NSW;

• Offence provisions reversing the evidentiary burden of proof mirror those of the Marine Safety Act 1998 (NSW), which regulates marine safety in NSW waters, thus ensuring the same legal regime applies on either side the contiguous marine border between the JBT and NSW;

• the Marine Safety Act 1998 (NSW), against which the Marine Ordinance provisions were framed was scrutinised by the elected NSW legislature; and

• the Marine Ordinance is subject to the scrutiny of the Commonwealth legislature.

Committee's first response

The committee thanks the minister for her response.

The committee notes the minister's advice that the offence provisions reversing the evidentiary burden of proof in the ordinance mirror NSW legislation. While the committee understands the desire to ensure the same legal regime applies on either side of a contiguous border, the scrutiny of such provisions by the NSW legislature does not provide sufficient assurance that the provisions meet this committee's expectations with respect to the inclusion of offence provisions in Commonwealth delegated legislation.

The committee also notes the minister's undertaking to amend the ES to provide a justification for the offence provisions in the ordinance that reverse the evidentiary burden of proof. However, as the minister's response does not provide information about the content of this justification, the committee is unable to conclude that these offences do not unduly trespass on personal rights and liberties in accordance with its scrutiny principle 23(3)(b).

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

Minister's second response

The replacement ES provided by the Minister for Local Government and Territories states:

An evidential burden of proof requires a person to provide evidence of an asserted fact in order to prove that fact to a court. Subsections 87(7) and 105(5) of the Ordinance place an evidential burden on an individual to demonstrate that they had a reasonable excuse for failing to meet a duty or obligation.
Sections 108 and 110 and subsections 15(2), 28(2), 30(8), 31(2), 32(2), 41(2), 47(4) and 71(1) and (2) of the Ordinance also place an evidential burden on the defendant by requiring the defendant to raise evidence about the relevant matter that suggests a reasonable possibility that the matter exists or does not exist, after which the prosecution must disprove those matters beyond reasonable doubt.
An evidential burden has been placed on defendants in these provisions as the conduct proscribed by each of the offences may pose a grave danger to public safety. In addition, in each case, a defendant will be the only person in the circumstances with the relevant knowledge able to provide evidence of any reason for refusing or failing to comply with the relevant duty or obligation and it would be significantly more difficult and costly for the prosecution to disprove than the defendant to establish the matter.

Committee's second response

The committee thanks the minister for her response and has concluded its examination of the above.

The committee previously commented as follows:

Section 92 of the ordinance provides that persons may assist police officers in exercising powers or functions or duties under Part 9. These include boarding a vessel, requiring a master of a vessel to answer questions, sampling, and securing or seizing things found using monitoring powers in relation to a vessel. ‘Persons assisting police officers’ is not defined outside of section 92. In this regard, the ES states:

This section provides that persons may assist police officers in the execution of their duties, if it is necessary and reasonable. Someone who helps a police officer in the exercise of their functions and duties is called a ‘person assisting’ the police officer. Powers exercised, or functions or duties performed by persons assisting, in accordance with the directions of a police officer, are taken to have been exercised or performed by the police officer.

However, it appears unclear to the committee:

a) whether the class of persons who may assist police officers is limited in any way;

b) whether the exemptions for police officers that are provided for in sections 109 and 110 would also apply to ‘persons assisting police officers’;

c) whether the conduct of 'persons assisting police officers' can be questioned in the same manner as the conduct of police officers; and

d) how these provisions would operate if ‘persons assisting police officers’ acted not in accordance with the directions of the police officer.

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

Minister's first response

The Minister for Local Government and Territories advised:

Section 92
I note the matters raised by the Committee and I have asked my Department to amend the explanatory statement for the Marine Ordinance to clarify:

• whether the class of person who may assist police officers is limited in any way;

• if the exemptions for police officers that are provided for in sections 109 and 110 apply to persons assisting police officers;

• whether the conduct of persons assisting police officers can be questioned in the same manner as the conduct of police officers; and

• how these provisions would operate if 'persons assisting police officers' acted not in accordance with the directions of the police officers.

Committee's first response

The committee thanks the minister for her response.

However, while the committee notes the minister's undertaking to amend the ES to the ordinance to clarify the committee's initial queries, the minister's response does not provide any information to clarify the matters raised by the committee.

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

Minister's second response

The replacement ES provided by the Minister for Local Government and Territories states:

Section 92 - Persons assisting police officers
Subsection 92(1) provides that a police officer may be assisted by other persons in the execution of their marine investigation and enforcement powers, functions and duties (provided for under Part 9 of the Ordinance) if that assistance is necessary and reasonable. Someone who assists a police officer in the exercise of their powers, functions and duties is called a 'person assisting' the police officer. The Ordinance does not limit the class of persons who may be a 'person assisting'...
Paragraphs (a) and (b) of subsection 92(2) provide for specific things that a person may do in assisting a police officer, namely, board a vessel or enter premises, and exercise powers and perform functions and duties under Part 9 of the Ordinance. However, under paragraph (c) of subsection 92(2), a person is only authorised by the Ordinance to do such things if they do them in accordance with a direction given to them by the police officer.
If a person assisting did such things other than in accordance with a direction given by the relevant police officer, their actions would not be authorised by the Ordinance, and any such power, function or duty purportedly exercised or performed by them would not be taken to have been exercised by the relevant police officer under subsections 92(3) and 92(4) (see below).
Under subsections 92(3) and 92(4), if a person exercises a power or performs a function or duty under Part 9 of the Ordinance in the course of giving necessary and reasonable assistance to a police officer who is also exercising powers or performing functions or duties under Part 9, and the person does so in accordance with a direction given to them by the police officer, the power, function or duty exercised or performed by the person will be taken for all purposes to have been exercised or performed by the police officer in question. Section 109 of the Ordinance provides that certain provisions of Part 6 do not apply to a police officer in certain circumstances: if s 109 would apply to a police officer exercising a power or performing a function or duty, then, provided the relevant criteria in sections 92 and 109 are satisfied, then [sic] the same exemption would apply to a person assisting who was exercising the power or performing the function or duty.
'For all purposes' an action of a person assisting a police officer, who is acting in accordance with the police officer's directions, is taken to be the action of the instructing police officer. Therefore, the police officer can generally be questioned about the action in the same way as they could be questioned had they taken the action themselves.
Exemptions under section 110 do not apply to a person assisting (only on the basis that they are a person assisting), as section 110 applies to persons assisting the Australian Defence Force or the naval, military or air forces of another country.

Committee's second response

The committee thanks the minister for her response and has concluded its examination of the above.

The committee previously commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely (i.e. without cost) available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that subparagraph 21(2)(b)(i) of the ordinance incorporates Australian Standard AS 1799.1-2009, as in force at the commencement of the ordinance. However, neither the text of the ordinance nor the ES indicates how AS 1799.1-2009 may be freely obtained.

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.

Minister's first response

The Minister for Local Government and Territories advised:

Subparagraph 21(2)(b)(i)
Australian Standard AS1799.1-2009 Small Crafts Part One (AS1799.1-2009), sets out requirements for maximum load, person and power capacities and for reserve buoyancy, stability, fire protection, testing of power boats and other safety aspects of craft up to 15 metres in overall length when used as recreational vessels. Australian Standard AS1799.1-2009 is readily available, but at a cost to the public.
Vessels cannot be registered in the JBT and they must meet the registration conditions set in their home state. Due to the proximity of NSW, the majority of vessels using JBT waters are likely to be registered in NSW. Further, it is likely that most vessels operating in JBT waters will traverse NSW regulated waters. In order to be registered and/or operate in NSW waters vessel operators must comply with regulation 13 of the Marine Safety Regulations 2016 (NSW), which makes similar provision, to section 21 of the Marine Ordinance.
Section 21 of the Marine Ordinance prohibits a vessel operating in JBT waters from having a motor that exceeds the appropriate power rating for the vessel. In most cases, the appropriate power rating is specified for the vessel by the manufacturer. However, where there is no power rating specified (or the specification is not apparent) and the vessel has an outboard motor, the appropriate power rating is to be calculated in accordance with section 2.6 of AS 1799.1-2009.
Noting the comments above, I have instructed my Department to paraphrase this response to address the Guide's requirement to include incorporated documents in the Explanatory Statement.

Committee's first response

The committee thanks the minister for her response.

The committee notes the minister's advice that the Australian Standard incorporated into the ordinance is readily available, but at a cost to the public.

In this regard, the committee reiterates its concerns about the incorporation of documents where there is a cost to access the material. Generally, the committee will be concerned where incorporated documents are not publicly, readily and freely available, because persons interested in or affected by the law may have inadequate access to its terms. In addition to access for members of a particular industry or profession etc. that are directly affected by a legislative instrument, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently,

the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[10] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

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

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

Minister's second response

The replacement ES provided by the Minister for Local Government and Territories states:

Section 21 – Offence – exceeding the appropriate power rating for a vessel
This section creates an offence of operating a vessel in JBT waters with
a motor that exceeds the appropriate power rating for the vessel. For
the purposes of practical jurisdictional application subsection 21(2) of the Ordinance reflects section 13 of the NSW Regulations, which expressly refers to Australian Standard AS 1799.1 - 2009 Small craft – General requirements for power boats (as in force on the commencement day) and the power rating approved by NSW Roads and Maritime Services (RMS) for vessels of that kind (again, as in force on the commencement day).
In most cases, the appropriate power rating is specified for the vessel by the manufacturer. However, where there is no power rating specified, or the specification is not apparent, and the vessel has an outboard motor, the appropriate power rating is to be calculated in accordance with section 2.6 of AS 1799 .1 -2009. If the vessel does not have an outboard motor, the appropriate power rating is the power rating for vessels of the kind approved by RMS for the purposes of clause 13 of the NSW Regulation
(as in force on the commencement day).
AS 1799.1-2009 sets out requirements for maximum load, person and power capacities and for reserve buoyancy, stability, fire protection, testing of power boats and other safety aspects of craft up to 15 metres in overall length when used as recreational vessels. It does not apply to boats used for commercial purposes or exclusively for racing, nor to canoes, kayaks, inflatable boats, rigid inflatable boats, yachts or auxiliary yachts.
A hardcopy or PDF version of AS 1799.1-2009 is available for purchase via the publisher's website.^[11] Alternatively, AS 1799.1-2009 can be viewed free of charge at the National Library, the Shoalhaven Library, the Department's Library in Canberra, and the Department's Jervis Bay Territory Administration Office (Village Road, Jervis Bay Village, JBT).

Committee's second response

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

In concluding, the committee welcomes the minister's advice that AS 1799.1-2009 can be viewed free of charge at various libraries, as well as at the Department of Infrastructure and Regional Development's Jervis Bay Territory Administration Office. However, the committee remains concerned about the lack of free access to material incorporated into legislation generally, and will continue to monitor this issue.

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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 13 June 2017).

^[2] See Section 19: Offence of operating an unsafe vessel (Penalty: Imprisonment for 20 months or 100 penalty units, or both); Section 24: Offence of reckless or negligent operation of a vessel (Penalty: Imprisonment for 10 months or 50 penalty units, or both); Section 32: Offence of climbing etc. onto a vessel (Penalty: 100 penalty units); Section 36: Offence of interfering etc. with lightships and navigation aids (Penalty: 100 penalty units); Section 59: Offence of middle range prescribed concentration of alcohol (Penalty: Imprisonment for 6 months or 30 penalty units, or both); Section 60: Offence of high range prescribed concentration of alcohol (Penalty: Imprisonment for 10 months or 50 penalty units, or both); and Section 113: Offence of breaching a condition of an exemption (Penalty: 60 penalty units).

^[3] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/Pag es/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 16 November 2016).

^[4] See, Delegated legislation monitor 6 of 2014, pp 18 and 69 (response received from the First Parliamentary Counsel in relation to Australian Jobs (Australian Industry Participation) Rule 2014).

^[5] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/Pag es/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 16 November 2016).

^[6] Subsection 13.3(3) of the Criminal Code provides: A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

^[7] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/Pag es/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 16 November 2016), pp 50-52.

^[8] Section 13.4 of the Criminal Code provides: A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly: (a) specifies that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved.

^[9] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/Pages/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 16 November 2016), pp 50-52.

^[10] Thirty-Ninth Parliament, Report 84, Joint Standing Committee on Delegated Legislation, Access to Australian Standards Adopted in Delegated Legislation (June 2016) http://www.parliament. wa.gov.au/parliament/commit.nsf/all/6BCDA79F24A4225648257E3C001DB33F?opendocument&tab=tab3 (accessed 2 March 2017).

^[11] See SAI Global website https://infostore.saiglobal.com/store/details.aspx?ProductID=1141233 (accessed 18 April 2017)