[Peetwo]

DLM 5 of 2022; & ACT Lakes Ordinance/regulatory overreach?? 

Via the Senate: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

Monitor
Ministerial responses
Tabling statement   


Refer to pages 3 to 14 of the Monitor - extracts:

Overview

1.3 The Australian Capital Territory National Land (Lakes) Ordinance 2022 (the
instrument) regulates various matters relating to the management and use of National
Lakes (Lake Burley Griffin) in the Australian Capital Territory, including the grant of
permits to use Lake Burley Griffin for various activities, regulation of boating and the
closure of the lake area for safety, maintenance and for approved events. The
committee has identified several significant technical scrutiny concerns in the
instrument, detailed below.

Scrutiny concerns

Coercive powers;2 significant matters in delegated legislation3

1.4 Several provisions in the instrument contain search and seizure powers.4 Where an instrument contains coercive powers such as these, the committee will consider relevant limitations on the powers, including who may exercise them,5 and whether the powers unduly trespass on personal rights and liberties,6 such that they are a matter more appropriate for parliamentary enactment.7

Inclusion of coercive powers

1.5 Part 8 division 2 of the instrument confers entry, search and seizure powers on inspectors to enter boats and seize evidence. Additionally, section 140 authorises the seizure of a boat if an inspector believes it is or has been involved in an offence against the instrument.

1.6 The committee considers that provisions which contain coercive powers have the potential to seriously trespass on personal rights and liberties and should not ordinarily be included in delegated legislation.8 Where an instrument nevertheless contains such provisions, the committee expects the explanatory statement to describe the nature and scope of the provisions and the circumstances in which the powers will be exercised. The committee also expects the explanatory statement to justify why the provisions are necessary and appropriate, whether compensation is available for any property seized or destroyed in the exercise of the powers, whether independent review is available of decisions made and actions taken in connection with the exercise of the powers, and whether the provisions comply with Chapters 7 and 8 of the Attorney-General's Department's Guide to Framing Commonwealth Offences.9

1.7 In this regard, the explanatory statement does not appear to describe why
entry, search and seizure powers are necessary and appropriate to be included in the
instrument, nor does it explain whether these provisions comply with the Attorney-
General's Department's Guide to Framing Commonwealth Offences. The explanatory
statement separately clarifies that no independent review is available for decisions
made under the instrument,10 heightening the committee's concern about the
inclusion of coercive powers in delegated legislation and the need for such powers to
be thoroughly justified.

Exercise of coercive powers

1.8 Subsection 150(1) of the instrument provides that the minister may appoint
the Chief Executive of the National Capital Authority or a member of the staff of the
National Capital Authority as an inspector for the purposes of the instrument.
Subsection 150(3) provides that the Delegate for Lakes and police officers are also
inspectors for the purposes of the instrument.

1.9 As noted above, where an instrument confers coercive powers on a person or
class of persons, the committee will be concerned to ensure that the instrument does
not unduly trespass on personal rights and liberties. In this regard, the committee will
consider whether there are appropriate limits and safeguards in place on the exercise
of powers, and whether the persons on whom the powers are conferred possess the
appropriate qualifications or experience necessary to exercise the powers.

Accordingly, the committee expects the explanatory statement to outline who will be
exercising the relevant powers and whether they possess the appropriate
qualifications and necessary skills. The committee also expects the explanatory
statement to include the nature and source of any relevant limitations and safeguards
on the exercise of the powers, including whether they are contained in law or policy.

1.10 In addition, where an instrument delegates administrative powers or
functions to a member of the Australian Public Service, the committee expects that
the delegation will be limited to members of the Senior Executive Service (SES) or
equivalent. Consequently, the explanatory statement should provide a thorough
justification for any delegation of powers to officers below the SES level.

1.11 In this instance, neither the instrument nor its explanatory statement appears
to provide any guidance about what qualifications or experience a person must
possess to be appointed as an inspector, other than being a relevant office-holder in
section 150, nor is there any detail about any safeguards or limitations on the exercise
of the powers.

1.12 The committee therefore requests the minister's more detailed advice as to:
• why entry, search and seizure powers are necessary and appropriate, including how the public interest is served by their inclusion in delegated legislation, rather than primary legislation;
• whether the provisions comply with Chapters 7 and 8 of the Attorney-General's Department's Guide to Framing Commonwealth Offences;
• the circumstances in which the search and seizure powers will be exercised;
• whether the individuals exercising the powers under section 150 will be required to have the appropriate skills, qualifications and experience to exercise the relevant powers; and
• whether any safeguards or limitations apply to the exercise of these powers, and, if so, whether the safeguards are contained in law or policy.

Significant penalties;11 significant matters in delegated legislation12

1.13 The instrument contains several offences which impose custodial penalties ranging from three to twelve months.13 For example, section 47 provides that a person who operates an unsafe boat on the lake may incur a penalty of imprisonment for six months or 38 penalty units ($8 436), or both.

1.14 Senate standing order 23(3)(j) requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment. This includes whether an instrument imposes significant penalties.

1.15 In the committee's view, 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 offence and penalty.

1.16 Where an instrument imposes significant penalties, the committee expects the explanatory statement to explain the nature and scope of the offence and what penalties apply.14 The committee also expects the explanatory statement to justify why the penalty is appropriate to the relevant offence, and why it is necessary and appropriate to include such penalties in delegated legislation. In addition, the committee expects the explanatory statement to state whether the Attorney-General was consulted in relation to the inclusion of custodial penalties, in accordance with Offences.15

1.17 In this instance, the explanatory statement provides that the penalties are
consistent with the penalties for equivalent offences set out in the
Lakes Act 1976 (ACT). However, noting that the Lakes Act 1976 is primary legislation,
it remains unclear to the committee why it is appropriate to include such penalties in
delegated legislation rather than primary legislation.

1.18 The committee therefore requests the minister's more detailed advice as to:
• the justification for including custodial penalties in sections 47, 48, 102, 104
and 105 of the instrument, as opposed to primary legislation; and
• whether the Attorney-General's Department was consulted in relation to
the inclusion of custodial penalties in the instrument, in accordance with
Part 3.3 of the Attorney-General's Department's Guide to Framing
Commonwealth Offences.

Strict liability;16 absolute liability17

1.19 The instrument provides for several strict liability offences.18 For example,
section 14 provides that a person commits an offence of strict liability if they put a
boat in a lake or take a boat from a lake (other than a personal watercraft) at a place
that is not in a prescribed launching area. Section 104 of the instrument similarly
creates a strict liability offence for persons who operate a boat on a lake whilst having
a prescribed drug in their oral fluid or blood. However, subsection 104(2) provides that
a person cannot rely on a defence of mistake of fact about the identity of the
prescribed drug in their oral fluid or blood. Excluding the defence of mistake of fact
appears to apply absolute liability to this component of the offence. In addition to
these offences on the face of the instrument, section 106 appears to apply certain
strict liability offences in the Road Transport (Alcohol and Drugs) Act 1977 to persons
operating a boat on a lake.19

1.20 Senate standing order 23(3)(h) requires the committee to scrutinise each legislative instrument as to whether it trespasses unduly on personal rights and liberties. This includes whether the instrument provides for offences of strict or absolute liability.

1.21 The requirement for the prosecution to prove fault on the part of a defendant is an important element of the common law right to be presumed innocent. The application of strict and absolute liability undermines this right by removing the requirement to prove fault in relation to one or more elements of an offence.

1.22 Where an instrument provides for strict or absolute liability offences, the committee expects the explanatory statement to explain the nature and scope of each offence, including the relevant penalties.20 The committee also expects the explanatory statement to justify why it is necessary and appropriate to apply strict or absolute liability to the offence with reference to the principles set out in part 2.2.6 of the Attorney-General's Department's Guide to Framing Commonwealth Offences.21

1.23 The inclusion of absolute liability offences requires a particularly strong justification, as this excludes the fault element and defence of honest and reasonable mistake of fact.

1.24 In this regard, the explanatory statement does not appear to outline why the strict and absolute liability offences are necessary and appropriate. While the statement of compatibility notes that 'many of the strict liability offences in the Ordinance relate to safety on the lake', it is unclear why strict liability offences are necessary for offences that do not relate to lake safety.22

1.25 The committee further notes that sections 102 and 104 of the instrument include a maximum penalty of 12 months and three months imprisonment respectively. The committee's concerns about the lack of justification for strict or absolute liability offences are heightened by the inclusion of custodial penalties.23 This is consistent with the position of the Senate Standing Committee for the Scrutiny of Bills and the Attorney-General's Department's Guide to Framing Commonwealth Offences, which provides that the application of strict or absolute liability to all physical elements of an offence is not appropriate where the offence is punishable by imprisonment.

1.26 The committee therefore requests the minister's more detailed advice as to why it is necessary and appropriate for the instrument to contain offences of strict and absolute liability, with reference to the principles set out in part 2.2.6 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, particularly in relation to the following offences:
• offences that include custodial penalties;
• offences in the Road Transport (Alcohol and Drugs) Act 1977 (ACT) applied by section 106 of the instrument; and
• offences that do not relate to lake safety.

Reverse burden of proof24

1.27 Several offences in the instrument contain defences which impose an evidential burden of proof,25 or legal burden of proof,26 on the defendant. For example, subsection 15(1) creates an offence for swimming or diving in a lake in an area where swimming or diving is not permitted. Subsection 15(2) provides a defence where the swimming or diving is authorised by a regulated activity permit, and a note to the provision provides that a defendant bears an evidential burden in relation to the matter.

Subsection 29(1) of the instrument makes it an offence to anchor a boat on a lake at night. Subsection 29(4) provides a defence if the defendant proves that the boat was anchored for the purpose of viewing a fireworks display and the defendant or someone else was on the boat for that purpose when the boat was anchored. A note to the provision provides that a defendant bears a legal burden in relation to this matter. In addition to these offences, section 106 of the instrument appears to apply certain provisions in the Road Transport (Alcohol and Drugs) Act 1977 which reverse the legal burden of proof to persons operating a boat on a lake.27

1.28 Senate standing order 23(3)(h) requires the committee to scrutinise each legislative instrument as to whether it trespasses unduly on personal rights and liberties, including the right to be presumed innocent.

1.29 The right to be presumed innocent is a fundamental principle of the Australian legal system. Normally, the right to be presumed innocent requires the prosecution to prove all elements of an offence. Consequently, this right is undermined by provisions which require the defendant to raise evidence about a matter (reverse evidential burden), or positively prove a matter (reverse legal burden).

1.30 The committee expects that the explanatory statements to instruments which
reverse the burden of proof should justify why it is necessary and appropriate to do so
in the explanatory statement.28 Where the legal burden of proof is reversed, the
committee considers that a much stronger justification is necessary. The committee
also expects justification to refer to the test in part 4.3 of the Attorney-General's
Department's Guide to Framing Commonwealth Offences.29 This test requires that the
relevant matter is peculiarly within the knowledge of the defendant, and would be
significantly more difficult and costly for the prosecution to disprove than for the
defendant to prove. In addition, if the provision reverses the legal burden of proof, the
committee expects the explanatory statement to justify why this is necessary, rather
than reversing the evidential burden of proof.

1.31 In this regard, the committee notes that the explanatory statement provides
limited explanation as to why it is necessary and appropriate to reverse the evidential
burden of proof in relation to some offences and no explanation as to why it is
necessary and appropriate to reverse the legal burden of proof.

1.32 The committee therefore requests the minister's more detailed advice as to:
• why it is necessary and appropriate to reverse the evidential burden of proof
for the relevant offences, with reference to the relevant guidance in the
Attorney-General's Department's Guide to Framing Commonwealth
Offences;
• why it is necessary and appropriate to reverse the legal burden of proof in
sections 29, 60, 75, 78, 89 and 103 of the instrument, with reference to the
relevant guidance in the Attorney-General's Department's Guide to Framing
Commonwealth Offences;
• why it is necessary and appropriate to reverse the legal burden of proof in
sections 29, 60, 75, 78, 89 and 103 of the instrument, as opposed to the
evidential burden of proof; and
• why it is necessary and appropriate to apply provisions reversing the legal
burden of proof in the Road Transport (Alcohol and Drugs) Act 1977 (ACT) to
persons who operate a boat on a lake within the meaning of the instrument.

Hmm...I wonder if Dr A (the guru on big R regulatory drafting) has offered his services in helping draft the 'Australian Capital Territory National Land (Lakes) Ordinance 2022'?? - 

Perhaps the committee could be convinced to do a top down review of all the individual Parts of the CASR?   

MTF...P2