Australian Naval Nuclear Power Safety Bill 2023 - Initial Scrutiny [2024] AUSStaCSBSD 2 (18 January 2024)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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Australian Naval Nuclear Power Safety Bill 2023^[1]

Purpose	This bill seeks to establish a framework to regulate the nuclear safety aspects of Australia’s nuclear-powered submarine enterprise.
Portfolio	Defence
Introduced	House of Representatives on 16 November 2023
Bill status	Before the House of Representatives

Significant penalties
Reversal of the evidential burden of proof^[2]

1.2 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,^[3] so far as is reasonably practicable,^[4] 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.

1.3 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.

1.4 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).^[5]

1.5 The committee considers that, where significant penalties are imposed, the rationale should be fully outlined in the explanatory memorandum, and should be justified by reference to similar offences in Commonwealth legislation and if not, why not. This promotes consistency and guards against the risk that a person's liberty is unduly limited through the application of disproportionate penalties.

There are varying levels of civil and criminal penalties depending on the duty involved and the person to whom the duty applies. The penalties have been chosen based on the possible severe outcomes if a duty is breached, such as death, serious injury or serious harm to the environment. They have also been chosen to act as a deterrent to ensure compliance and to promote public confidence and trust in the nuclear-powered submarine enterprise. This is consistent with the objects of the Act.^[6]

1.7 In relation to subclause 19(3), the explanatory memorandum further explains that ‘the offence and the penalties in subsection 19(3) are intended to provide an effective deterrent to conduct that contravenes the section’.^[7] This same explanation is provided for subsections 20(3) and 21(5),^[8] and no explanation is provided for the other offences in Part 2 of the bill.

1.8 The committee considers that in the context of nuclear safety, significant penalties may be appropriate to ensure compliance with the regulatory scheme. Nevertheless, it is unclear to the committee why particular penalty amounts have been chosen in relation to the various offences. The committee considers that the explanatory memorandum has not justified why the various penalties have been considered necessary to achieve deterrence. In addition, no reference to other Commonwealth laws has been provided or explanation as to why these penalties may differ from other Commonwealth laws. The committee’s concerns are heightened given that strict liability is attached to elements of some of these offences and the evidential burden of proof has also been reversed in relation to some of these offences, as discussed further below.

1.9 In light of this, the committee requests the minister’s detailed advice as to:

1.10 The committee's consideration of the appropriateness of these provisions would be assisted if the minister’s response explicitly addresses relevant principles as set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences).

Reversal of the evidential burden of proof^[9]

1.11 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.^[10] A defendant bears an evidential burden of proof in relation to these matters.

1.12 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.

1.13 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[11] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interfere with this common law right.

1.14 Generally, a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

1.15 While in these instances 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 evidential burden of proof to be justified.

1.16 In relation to subclauses 19(5), 23(5) and 25(5), the explanatory memorandum explains that ‘it is appropriate for the defendant to bear the evidential burden because the facts in relation to the defence are within the defendant’s knowledge’.^[13]

1.17 In this instance, the committee considers that whether the facts are within the defendant’s knowledge is not the appropriate test as to whether the evidential burden of proof should be reversed. In relation to subclause 19(5), for example, whether a person is authorised by a licence to conduct a regulated activity, or whether an exemption under section 144 has been granted, are both facts that would be readily ascertainable by the prosecution and is not peculiarly within the defendant’s knowledge. As noted above, the committee’s concerns are heightened in these instances given the significant penalties attached to these offences. The committee considers it is likely more appropriate to include these exceptions as elements of the offence, or to disallow the application of subsection 13.3(3) of the Criminal Code Act 1995 (Criminal Code), so that the defendant does not bear the evidential burden of proof.

1.18 The committee requests the minister’s detailed 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).

1.19 The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.

Coercive powers—entry and search powers^[14]

1.20 Part 4, division 2 of the bill provides for powers relating to ‘monitoring areas’.^[15] Clause 40 provides that an inspector may, at any time, enter a monitoring area and exercise monitoring powers to:

1.21 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.^[16] Additionally, it includes the power to secure evidential material for up to 72 hours under particular conditions.^[17] These powers can be exercised without the consent of any relevant person in relation to the monitoring area,^[18] and without a warrant.^[19]

1.22 Under common law, government officials cannot enter and search the premises of a person without consent. Although this common law position may be appropriately modified by legislation, the committee will closely scrutinise any conferral of coercive powers. As noted in the Guide to Framing Commonwealth Offences, the default position is that entry into a premises without consent should generally be authorised by a warrant issued by a judicial officer, such as a magistrate.^[20]

1.23 Officials entering premises without consent should also generally be either police officers, or officers of another kind of investigatory body which has established clear guidelines on the appropriate conduct of an investigation.^[21] A framework allowing Commonwealth officials to enter premises either with consent or with a warrant is set out in the Regulatory Powers (Standard Provisions) Act 2014.^[22] However, that framework has not been applied in this case.

The Regulatory Powers Act is an Act of general application and there is no express requirement to trigger its provisions. In this instance, it was considered not suitable to trigger certain parts of the Regulatory Powers Act because of the unique operating circumstances of the conventionally armed, nuclear-powered submarine enterprise. In particular, the compliance and enforcement powers need to be appropriate for the military context in which they will be exercised.^[23]

1.25 The committee considers that there may be sound reasons to depart from the standard Commonwealth law position in relation to monitoring and investigating an industry which potentially poses serious dangers to public health, however it is unclear to the committee why the approach proposed in the bill has been taken. The committee notes that the Guide to Framing Commonwealth Offences considers that a monitoring warrant regime may be appropriate ‘where there is a need to monitor compliance with legislation in circumstances where no offence is suspected’.^[24] It appears to the committee that such a regime may be appropriate to regulate Part 4, division 2 of the bill in relation to monitoring powers.

1.26 The committee requests 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.

Coercive powers—seizure
Use and derivate use of seized material^[25]

1.27 Clause 43 provides for additional powers for an inspector to seize a thing without a warrant where:

1.28 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.

1.29 The Guide to Framing Commonwealth Offences outlines the expectation that seizures should only be allowed under warrant, with an interim power to secure the item if necessary.^[26] While under subparagraph 43(1)(b)(ii) seizure of items is limited to where it is not practicable to obtain a warrant or the circumstances are serious and urgent, the committee is unclear what the term ‘not practicable to obtain a warrant’ means.

1.30 In this case, the explanatory memorandum provides only a short justification:

This provision applies where it is impractical to obtain a warrant such as in remote locations. Other comparable examples include subsection 70A(6) of the National Health Security Act 2007 and subsection 68(6) of the National Vocational Education Training Regulator Act 2010.^[27]

1.31 The committee considers that this justification does not adequately provide guidance on what may be considered ‘not practicable’. It therefore retains concerns regarding the potential breadth of this term. While remote locations may make it more difficult to obtain a warrant, the Guide to Framing Commonwealth Offences outlines that in circumstances where it is not practical to obtain a warrant in person, it is usually desirable to allow for the issue of a warrant by telephone or other electronic means and should contain the safeguards and requirements in section 3R of the Crimes Act 1914 (Crimes Act).^[28] It is unclear to the committee why remote warrant provisions would not be appropriate in this context.

1.32 Additionally, it appears to the committee that evidential material seized under clause 43 can be used to prosecute offences outside of the bill. The committee notes that the power to secure evidence under clause 42 is limited to where an inspector reasonably believes that a provision of the bill has been contravened with respect to the thing, or the thing affords evidence of, or is intended to be used, for the purpose of contravening a provision of the bill.

1.33 However, clause 43 is not so limited and requires just that an inspector reasonably believes that the thing is evidential material (and it is not practicable to obtain a warrant or the circumstances are serious and urgent, as noted above). Further, paragraph 43(3)(b) provides that if the thing is equipment or a device that has been operated under the monitoring powers in clause 41, the inspector may seize the thing only if possession of the equipment or device by a relevant person in relation to the monitoring area could constitute an offence against a law of the Commonwealth, a state or a territory.

1.34 Further, even where a warrant is issued in relation to investigation powers under Part 4, division 3 of the bill, evidential material not specified in the warrant may be seized. Clause 52 of the bill provides that if an inspector enters an investigation area under an investigation warrant to search for evidential material, they can seize a thing that is not evidential material of the kind specified in the warrant. This can occur if, in the course of searching for the kind of evidential material specified in the warrant, the inspector finds a thing, and reasonably believes that it is evidential material of another kind and it is necessary to seize it in order to prevent its concealment, loss or destruction.

1.35 The Guide to Framing Commonwealth Offences outlines the principle that where legislation confers seizure powers, consideration should be given to including limits on the use and derivative use of incidentally seized material.^[29] It further outlines the principle that legislation should be explicit where it confers the power to seize material related to an offence other than that for which a warrant was issued. It explains that:

In such instances, the legislation should also require that warrants include clear information on the extent of the seizure powers authorised under a warrant and whether these powers extend to material related to a different offence to that specified in the warrant (for example, see subsection 3E(6) of the Crimes Act). Provision may also be made for how material seized in relation to an offence under another Act is to be dealt with (for example, if material seized by a regulatory agency is relevant to a Commonwealth offence, that it be provided to the AFP [Australian Federal Police] as soon as practicable or within a specified timeframe).^[30]

1.36 In this case, the explanatory memorandum has not provided any additional information as to whether any limitations on the use and derivative use of seized material have been considered. In relation to the power under clause 53, the explanatory memorandum explains:

This is intended to cover limited circumstances where it may be impractical to obtain a warrant, including those involving operations in remote locations and other cases where an issuing officer may not be available.^[31]

1.37 Again, the committee considers that there may be sound reasons to depart from the standard Commonwealth law position in relation to the seizure of material in this context, but the committee does not consider that the departure from the principles in the Guide to Framing Commonwealth Offences has been suitably justified. As such, the committee considers it may be appropriate to include further provisions to clarify the power to seize material related to a different offence.

1.39 The committee's consideration of the appropriateness of these provisions is assisted if the minister’s response explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.

^[2] 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).

^[3] 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.

^[9] 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).

^[10] 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.

^[11] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on an exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

^[12] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) p. 50.

^[14] Part 4, division 2. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[15] Part 4, division 3 of the bill separately deals with powers relating to ‘investigation areas’ and, 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.

^[20] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 80–81.

^[21] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, Chapter 8.

^[24] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 87–88.

^[25] Part 4, div 2, clause 43 and part 4, div 2, clause 52. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[26] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 82–83.

^[28] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 81–82.

^[29] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 84.

^[30] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 84.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests