Export Control (Plants and Plant Products-Norfolk Island) Order 2016 [F2016L01796]-Further response required [2017] AUSStaCSDLM 86 (22 March 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)
Previously reported in	Delegated legislation monitor 1 of 2017

Insufficient justification of strict liability offences

The committee 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,^[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.

Minister's 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 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.

The committee commented as follows:

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.

Minister's response

The Minister for Agriculture and Water Resources advised:

Consistent with subsection 14(1) of the Legislation Act 2003, the intention is for references to the International Plant Protection Convention of the Food and Agriculture Organization of the United Nations (IPPC) to be read as in force at a particular time. In this case, the IPPC would be incorporated as at the date that the Export Control (Plants and Plant Products -Norfolk Island) Order 2016 was made (8 November 2016).
I am aware that the Committee places considerable reliance on explanatory statements to explain legislative instruments and the incorporation of extrinsic materials. I have requested that, where possible, the department include additional information in explanatory statements addressing the manner in which extrinsic material has been incorporated.

Committee's response

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

The committee also thanks the minister for his advice that in the future the Department of Agriculture and Water Resources will include additional information in ESs to specify the manner in which extrinsic material is incorporated.

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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).