[Peetwo]

ACT Lakes Ordinance/regulatory overreach - Part II

Ref:

An excellent example of the mindset of the Can’tberra bureaucrats and their pursuit of perfect control and to hell with the principle of innocent until proven guilty. Even the Committee gives weight the cost of prosecution being a good reason to undermine the most fundamental foundation of justice.

But what cost justice ?  Civilisation, freedom and prosperity and the pursuit of happiness?

The dearth of intellect and proportionality being displayed by the make work salary factories of Canberra’s Public Sector (that which used to be the Public Service) is frightening. There is no doubt that this excessive and hugely expensive bureaucratic overreach is costing the taxpayer dearly, as well as undermining our way of life.

We need a Bill of Rights.

Much thanks to P2 for keeping watch and uncovering such an important area, and heaven help anyone who trips and falls into Lake Burley Griffin, you might finish up with a criminal conviction (try going o/s with that) and a year in jail.

Follow up to the above, which IMO perfectly highlights the Albo Government's take on such matters as public safety risk mitigation thru overbearing, draconian regulation. The following is the miniscule's (IE Mandarin's) response to the Scrutiny of Delegated Legislation Committee's concerns with the 'ACT National Land (Lakes) Ordinance 2022' and the subsequent committee view (acceptance/further recommendations): Ref -  https://auntypru.com/wp-content/uploads/...2022-2.pdf & https://auntypru.com/wp-content/uploads/...2022-1.pdf

Minister's response10

1.10 In her response of 8 November 2022, the minister advised that the entry, search and seizure powers conferred by the instrument are necessary for the effective and safe operation of the Lake, including for the protection of Lake users and the environment.

1.11 The minister also advised that the AGD Guide contemplates the inclusion of these powers where the objectives of the primary legislation will be frustrated unless the powers are included in delegated legislation. The minister added that the inclusion of such detailed matters in the primary legislation, the Seat of Government (Administration) Act 1910 (the 1910 Seat of Government Act), would change the basic framework of the legislative scheme, which is fundamental to the administration of Commonwealth laws in the ACT.

1.12 The minister further noted that the Governor-General's power to make ordinances for the peace, order and good government of National Land is plenary and has historically been used by the government to make laws for the ACT. Further, she noted that ordinances made for the external territories generally deal with 'state-type matters', including those relating to the protection of life, which are not normally dealt with in other types of Commonwealth delegated legislation.

1.13 The minister provided specific examples of situations where the entry, search and seizure powers would be used for the effective and safe operation of the Lake, to be exercised in "situations of emergency and serious danger to public health".11The situations were such that there was a need for inspectors to be able to respond swiftly to minimise endangerment to life, environment and property. The minister advised that the use of these powers is constrained by the need for consent and search warrants, except for where life or property is endangered.

1.14 The minister further advised that the Delegate for Lakes is appointed on the basis of having technical expertise, relevant qualifications and experience in water management roles. Members of the Australian Federal Police are also automatically defined to be inspectors and exercise entry, search and seizure powers on the lake. The minister also noted that internal frameworks and guidelines are currently being developed to monitor the exercise of coercive powers.

1.15 Finally, the minister made an undertaking to amend the explanatory statement to provide a more detailed explanation of these unique legal and administrative arrangements governing the Lake, which justify the inclusion of coercive powers in the Ordinance.

Committee view

1.16 The committee notes the minister's advice that protection of life, environment and property on the Lake are of great importance and that search, entry and seizure powers are required to ensure the safe and efficient operation of the Lake. The committee also notes the advice that these powers are delegated to a suitably qualified and experienced individual and the exercise of the powers is limited by the need for consent or warrants, except in cases requiring the protection of life or property. Additionally, the minister helpfully clarifies that the 1910 Seat of Government Act cannot be amended to include the relevant powers, as this may inadvertently change the basic framework of the legislative scheme, which is fundamental to the administration of Commonwealth laws in the ACT and would affect other ordinances made under the 1910 Seat of Government Act.

1.17 While acknowledging this advice, the committee would appreciate further detail about the nature of the relevant legislative framework and how amendments to the Act could detrimentally change the framework of the legislative scheme.

1.18 The committee therefore requests the minister's further detailed advice as to what limitations prevent the 1910 Seat of Government Act from being amended to include certain powers.

Minister's response14

1.21 In her response of 8 November 2022, the minister advised that the legal and administrative arrangements governing the Lake are under the 1910 Seat of Government Act, which cannot be amended to include these offence provisions without changing the framework of the Act’s legislative scheme and unintentionally limiting the scope of the ordinance-making power. The minister also noted that the Governor-General’s plenary power authorises the making of ordinances and does not limit the size or nature of the penalties that can be imposed with respect to National Land.

1.22 The minister also confirmed that the Administrative and Criminal Law sections of the Attorney-General’s Department were consulted in relation to the inclusion of custodial penalty provisions and provided recommendations accordingly. Further, the custodial penalties for offences under sections 102 to 105 are consistent with the Lakes Act 1976 (ACT) (the Lakes Act), which relates to territory lakes.

1.23 Finally, the minister undertook to amend the explanatory statement to set out the unique legal and administrative arrangements governing the Lake and clarify that the penalties imposed are consistent with corresponding offences under the Lakes Act.

Committee view

1.24 It is the committee’s view that serious criminal offences and significant penalties should ordinarily be included in primary legislation rather than delegated legislation to ensure appropriate parliamentary oversight of the scope of the relevant offence and penalty. The committee notes the minister's advice as to the need to include the provisions relating to these offences and the associated penalties (including custodial penalties) in the ordinance, as the relevant primary legislation cannot be amended to include these provisions.

1.25 While the committee welcomes the minister’s undertaking to amend the explanatory statement to explain the unique legal and administrative arrangements governing the Lake, the committee seeks further information about the barriers to amending the primary legislation to include provisions relating to serious criminal offences and significant penalties, including custodial penalties.

1.26 Accordingly, the committee requests the minister's further advice as to the limitations preventing the 1910 Seat of Government Act from being amended to include the above significant penalties.

Minister's response20

1.30 In her response of 8 November 2022, the minister advised that the ordinance contains 65 offences of strict liability and no absolute liability offences. The offences, with the exception of the offences under sections 102 and 104, do not include
penalties of imprisonment and, in accordance with the AGD Guide, these offences are under 60 penalty units. The minister's advice notes that the offences are regulatory in nature, apart from those under sections 102 and 104, and are therefore appropriate as strict liability offences as enforcement officers can readily assess the truth of a matter and determine if an offence has been committed.

1.31 The minister advised that strict liability offences are imposed only where necessary and proportionate to the conduct being regulated, which includes for reasons of public safety and ensuring the enforcement of a regulatory scheme. Strict
liability offences can also deter relevant conduct, and are necessary to ensure the integrity of the regulatory regime over the Lake. The minister also advised that, due to the safety implications of operating a boat while intoxicated for the operator, other passengers and other lake users, it is reasonable that these offences are strict liability. These penalties are consistent with equivalent offences under the Lakes Act and the Road Transport Act.

1.32 The minister also confirmed that the offence under section 104 is not an offence of absolute liability although it excludes a defence of mistake of fact in one circumstance. This is where the defendant has mistaken a controlled drug for a prescribed drug. All other defences of mistake of fact are still available.

Committee view

1.33 The committee thanks the minister for her advice about the appropriateness of the provisions regulating the Lake to include offences of strict liability. The committee also thanks the minister for confirming the strict liability offences are applicable in cases that involve lake safety, such as operating a boat while under the influence of drugs or alcohol and, with the exception of two serious offences, they are subject to a maximum of 60 penalty units.

1.34 The committee also notes the minister’s advice that there are significant safety risks involved for the operator in operating a boat whilst intoxicated, and the offences are equivalent to other offences of strict liability that relate to operating vehicles whilst intoxicated. The committee further notes the minister's advice that the offence under section 104 is not an offence of absolute liability but rather only excludes the defence of mistake of fact in a narrow set of circumstances.

1.35 In light of the information provided by the minister, the committee concludes its examination of the instrument in relation to this matter.

Minister's response25

1.39 In her response of 8 November 2022, the minister advised that the nature of the relevant offences relate to serious matters of safety, primarily aimed at the protection or preservation of life of the person involved and of others, such as bystanders. The minister's advice also notes that these offences involve matters that are specifically in the minds of the defendant, in which case, the defendant would only need to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. It would be significantly more costly for the prosecution to disprove the existence of the relevant matter.

1.40 The minister also advised that these offences contain low penalty units, well under the 60 penalty unit threshold recommended for strict liability offences in the AGD Guide and, for a number of the offences, the conduct proscribed by the offence poses a grave danger to public health or safety. Additionally, for a number of these offences, the matters raised in relation to the defence are not central to the question of culpability for the offence.

1.41 Finally, the minister advised that for offences where the legal burden of proof has been reversed, the elements of the defence that must be positively proved are within the reasonable power of the defendant to establish and outside of the reasonable power of the prosecution to disprove. If the prosecution were required to disprove these matters beyond reasonable doubt (and the defendant were only required to meet an evidential burden) as part of the process of upholding the law, the prosecution would find it extremely difficult to perform the role necessary to support the operation and public safety purposes of those measures. Finally, the minister noted that these provisions align with equivalent provisions in the Lakes Act.


Committee view

1.42 The committee notes the minister’s advice that the offences contain low penalty units, relate to serious matters of safety and protection of life and relate to matters that are specifically in the minds of the defendants, which require the defendant to only adduce or point to evidence that suggests a reasonable possibility that the matter does or does not exist.

1.43 The committee’s view is that the right to be presumed innocent is a fundamental principle of the Australian legal system and this right is undermined by provisions that reverse the burden of proof and require the defendant to raise evidence about or to positively prove a matter. However, in this instance, the committee acknowledges that the nature of the offences relates to matters of public safety and protection of life, that the penalties for the offences are low and that the matters that are to be raised as part of either a legal or evidential burden of proof are matters that are specifically within the defendant’s mind and are within the defendant’s reasonable power to raise evidence about or positively prove.

1.44 In light of the information provided by the minister, the committee concludes its examination of the instrument in relation to this matter.

Minister's response29

1.49 The minister advised that in making the decisions regarding the matters highlighted by the committee, the National Capital Authority delegate must refer to criteria set out in the internal operating procedures and policies, so that decisions are
made in a consistent manner with reference to evidence, based on merit and subject to internal review mechanisms. The minister also advised that the delegation of these powers to non-SES officials is appropriate, given their specific expertise and
qualifications in water management, asset maintenance and planning, which will allow for the Lake to be administered efficiently for public benefit. Further, the agency’s size and resources do not allow for changes to this practice as it would be a significant operational impediment and could risk effective administration of the ordinance.

Committee view

1.50 The committee notes the minister’s advice that delegates must make decisions in accordance with criteria established in policy, with reference to evidence, and must provide reasons for decisions, which are also subject to review. The committee further notes the minister’s advice that delegations to officers below SES level are appropriate as they are required to possess the specific qualifications and expertise described by the minister.

1.51 The committee’s view is that when delegations are made below the SES level, the explanatory statement should include an explanation of the scope and nature of the delegated power and what specific skills or qualifications the delegate will require. In this instance, the committee notes the minister’ advice that the delegate, while not at SES level, must possess technical expertise in water management, asset maintenance and planning, which are necessary for the exercise of the conferred power, and that the delegate must exercise this power in accordance with criteria established in the National Capital Authority’s internal operating procedures and policies.

1.52 The committee therefore requests the minister's advice as to whether the explanatory statement can be amended to include the further advice provided to the committee about this matter.

Minister's response31


1.55 The minister advised that ‘dangerous to the public’ includes anything that causes, or is likely to cause, injury or death to a person, damage to property or threaten public safety. The minister’s advice also provides examples of behaviours that are contemplated to encompass dangerous conduct.

1.56 Further, the minister gave an undertaking to amend the explanatory statement to include guidance on the proper interpretation of ‘dangerous to the public’.

Committee view

1.57 The committee welcomes the minister's advice and undertaking to amend the explanatory statement to include the meaning of 'dangerous conduct'.

1.58 In light of the minister's advice and undertaking to amend the explanatory statement, the committee concludes its examination of the instrument in relation to this matter.

Minister's response34


1.61 The minister advised that the government was currently developing the Australian Capital Territory Legislation Amendment (Ordinances and Reserved Laws) Bill 2022, which is proposed to amend the AAT Act, such that decisions that are administrative in character and made under ACT ordinances will be subject to review by the AAT, as well as judicial review in the Federal Court and Federal Circuit Court.

Committee view

1.62 The committee welcomes the minister’s advice that a bill is in development which will allow for the availability of independent review of administrative decisions made under ACT ordinances, including such decisions under this instrument. The committee would appreciate an update on the progress of this matter when this is available.

1.63 In light of the minister's advice about the legislative developments in progress to address this issue, the committee concludes its examination of the instrument in relation to this matter but seeks an update on the progress of this matter when this is available.

Minister's response38


1.67 In her response of 8 November 2022, the minister advised that the Australian Standard is incorporated by reference and can be accessed at the National Capital Authority office during business hours upon request.

Committee view

1.68 The committee thanks the minister for her advice and notes that this information would be useful to include in the instrument's explanatory statement.

1.69 The committee therefore requests the minister's advice as to whether the explanatory statement can be amended to include this additional information about the incorporation of the Australian Standard and where it can be freely accessed.

Minister's response41

1.74 The minister advised that there is one regulation in force, the Road Transport (Alcohol and Drugs) Regulation 2000 (ACT), as well as several notifiable instruments, and the penalty units set under ACT laws are applicable in this instance.

1.75 The minister also advised that specific provisions of the Road Transport Act, which are based on Part 6 of the Lakes Act, are incorporated to ensure a consistent framework for the enforcement of drug and alcohol offences.

Committee view

1.76 The committee thanks the minister for her advice that the applicable regulation is the Road Transport Act, along with several notifiable instruments. The committee also thanks the minister for her advice that penalty units set under ACT laws are the applicable penalty units under the instrument. However, it is the committee's view that this information should be included in the instrument.

1.77 The committee therefore requests the minister's advice as to whether the instrument can be amended to include this additional information. 

   
Hmm...I wonder if there is any laws regarding the harassment of local wildlife intent on taking an early morning dip in Lake Burley Griffin...

Ref: Popinjay to the RESCUE

Watch this morning's rescue of a kangaroo from Lake Burley Griffin

21 September 2021 | Damien Larkins



While the kangaroo seemed glad to be out, it went back in the freezing lake two more times. Photo: David Boyd.

MTF...P2