Bills Digest No. 30, 2017-18
PDF version [707KB]
Bill McCormick
Science, Technology, Environment and Resources Section
7 September 2017
Contents
The Bills Digest at a glance
Purpose of the Bills
Structure of the Bills
Background
Table 1: regulation option:
cost-benefit outcome
Committee consideration
Senate Standing Committee for the
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Product Emissions Standards Bill
Product Emission Standards (Customs)
Charges Bill and Product Emissions Standards (Excise) Charges Bill
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Product Emissions Standards Bill 2017
Preliminary Provisions
Emissions-controlled product
Enforcing product emissions standards
Record keeping
Regulatory powers
Forfeiture of emissions-controlled
products
Miscellaneous
Product Emissions Standards (Customs)
Charges Bill 2017
Product Emissions Standards (Excise)
Charges Bill 2017
Product Emissions Standards
(Consequential Provisions) Bill 2017
Date introduced: 10
August 2017
House: House of
Representatives
Portfolio: Environment
and Energy
Commencement: In
the case of the Product Emissions Standards Bill 2017: the day after the Act
receives the Royal Assent.
The other Bills commence at the same time as the Product
Emissions Standards Act 2017 but the provisions do not commence
at all if that Act does not commence.
Links: The links to the
Bills, their Explanatory Memoranda and second reading speeches can be found
on the homepages for the Product
Emissions Standards Bill 2017, Product
Emissions Standards (Customs) Charges Bill 2017, Product
Emissions Standards (Excise) Charges Bill 2017 and Product Emissions
Standards (Consequential Provisions) Bill 2017, or through the Australian Parliament
website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2017.
The Bills Digest at a glance
The Bills would create a regime to regulate
emissions to protect air quality. They propose that an ‘emissions-controlled
product’ can be certified where it meets an emissions standard. The importation
or supply of a non-certified product will be an offence with such products
being forfeited to the Commonwealth, although persons or products may be exempted
from the operation of the Act.
The Bills impose charges for import or manufacture of
emissions-controlled products and rule making and delegation powers for the
Minister.
The Bills constitute part of the Commonwealth Government’s
actions under the National Clean Air Agreement. Although not specified
in the Bill, the Government has indicated that the first area to be regulated
is likely to be ‘non-road spark ignition engines and equipment’ (NRSIEE) such
as lawn mowers, garden trimmers and outboard motors, which are a major source
of air pollution.
The proposed legislation stems from a substantial
background of consultation and discussion with states, territories, and
business and conservation groups. It does not appear controversial.
Three key issues appear to arise in relation to the Bills.
First is the extent to which the Bills only create a
framework for the regulatory regime, leaving almost all detail to be set out in
the Rules. These matters include:
- what
constitute emissions-controlled products
- the
relevant emissions standards
- business
reporting requirements
- the
quantum of charges for import or excises for manufacture of
emissions-controlled products and
- the
scope of any rights of review over decisions taken under the legislation.
Second, the Bills propose a number of strict liability
offences.
Both the first and second issues attracted critical
comments from the Senate Scrutiny of Bills Committee.
Third, the effectiveness of the regime will depend on the
capacity of Australian government agencies to actively conduct the scrutiny,
inspections, investigations and enforcement activities provided for under the
Bills. The legislative materials do not discuss which agencies will be
responsible for enforcement and what resources they will be allocated. Although
the Bills provide for cost recovery for the administration of the regulatory
regime, the funds collected are not required to be allocated to the
administering agency.
Purpose of
the Bills
The purpose of the Product Emissions Standards Bill 2017, Product
Emissions Standards (Excise) Charges Bill 2017, Product Emissions
Standards (Customs) Charges Bill 2017 and the Product Emissions Standards
(Consequential Provisions) Bill 2017 (the Bills) is to create a regulatory
regime to regulate emissions from products by providing that an
‘emissions-controlled product’ can be certified where it meets an emissions
standard. The importation or supply of a non-certified product by a person will
be an offence with such products being forfeited to the Commonwealth, though
persons or products may be exempted from the operation of the Act.
Structure
of the Bills
The Product Emissions Standards Bill 2017 sets out core
elements of the proposed regulatory regime:
- Part
2 establishes a system for prescribing emissions-controlled products, with
provisions for certification and exemptions
- Part
3 establishes an enforcement regime governing the import, supply and marking of
emissions-controlled products
- Part
4 sets out record keeping requirements for importers and suppliers of emissions-controlled
products
- Part
5 deals with regulatory powers, including application of the Regulatory
Powers (Standard Provisions) Act 2014 in relation to monitoring and
investigation powers, and enforcement provisions relating to civil penalties,
infringement notices, enforceable undertakings and injunctions
- Part
6 establishes the forfeiture regime following contraventions of the import,
supply or marking rules, and includes seizure, return and compensation
provisions
- Part
7 deals with the appointment of inspectors, publication and disclosure of
information, conduct of compliance audits, delegation of powers, the periodic
review of the operation of the Act, and authorises the Minister to make rules.
The Product Emissions Standards (Customs) Charges Bill
2017 and Product Emissions Standards (Excise) Charges Bill 2017 create charges
on (respectively) the importation or domestic manufacture of products
prescribed under the Product Emissions Standards Bill 2017.
The Product Emissions Standards (Consequential Provisions)
Bill 2017 proposes amendments to the Customs Act 1901
so that forfeiture of relevant imported or exported goods to the Crown is dealt
with by the process set out in Part 6 of the Bill rather than by the automatic
forfeiture provision in the Customs Act.
Importantly, the Bills propose to create a general
legislative framework, leaving the detail of what products are regulated, the
standards and marking regime, and the applicable charges and excise to be dealt
with by legislative instrument.
Background
Emissions from non-road spark ignition engines and
equipment (NRSIEE) such as lawn mowers, garden trimmers and outboard motors
contribute to about 10 per cent of smog in Australian cities.[1]
NRSIEE emit various air pollutants including particulate
matter (PM), hydrocarbons (HC) and oxides of Nitrogen (NOx). Increased
population exposure to air pollutants increases the risk of adverse health
effects. Significant health costs are associated with inhalational exposure to
fine PM by the general population, including costs of hospital admission and
lost work productivity. There is also no known threshold for PM exposure below
which health effects do not occur, meaning any exposure can be harmful.[2]
The Minister for the Environment and Energy, Josh Frydenberg,
said that a ‘two-stroke leaf blower can produce the
same amount of nitrogen oxides as one car and the same amount of hydrocarbons
as 150 cars’.[3] However, unlike other countries such as the US, those
in the EU, China, Japan and Canada, Australia has not yet adopted NRSIEE
emission standards in order to minimise these emissions.[4]
It has been estimated that if such regulations were placed on outboard motors
that this would reduce hydrocarbon emissions by 30,000 tonnes annually.[5]
The two main sources of NRSIEE emissions are from marine
engines and outdoor powered equipment. Approximately 40,000 marine engines and
one million units of outdoor powered equipment are imported annually.
Australian manufacturing is limited to incorporating engines manufactured
overseas into products made in Australia.
Emissions from NRSIEE contribute to air pollution in
Australia, especially on summer weekends in urban centres when their use is
high. NRSIEE are high polluters relative to their size and usage. For example,
one hour of operation of a brushcutter produces around the same emissions of
air pollutants as ten cars operated over the same period.[6]
The options for reducing emissions from new NRSIEE were
first canvased in September 2010 when the then Environment Protection and
Heritage Council (EPHC) released a Consultation Regulation Impact Statement
(RIS) that examined whether there was a case for government action.
In 2012 and 2013 the Senate Standing Committee on
Community Affairs carried out an inquiry into the impacts on
health of air quality in Australia and tabled its report in 2013. The Committee recommended that
the Commonwealth should implement a national emissions standard for small
non-road engines that are equivalent to US Environmental Protection Agency (EPA)
standards.[7]
The April 2014 meeting of Environment
Ministers requested finalisation of a Decision RIS on
potential emission control options for NRSIEE.[8]
The 2015 Decision RIS updated analysis to take into account submissions
relating to the Consultation RIS and consultations undertaken since 2012. A cost-benefit
analysis was carried out, for the period 2016–2035, of the policy options that
included voluntary action by industry, co-regulation or regulation.[9]
Table 6.3 in the RIS estimates the cost-benefit outcome for the regulation of
NRSIEE over 2016–2035 to be $636 million with the avoidance of over $1.7
billion in health costs and reduction of $786 million in fuel costs.[10]
Table 1:
regulation option: cost-benefit outcome
Source: Reducing
Emissions from Non-road Spark Ignition Engines and Equipment, Regulation
Impact Statement, September 2015.
At their December 2015 meeting, Environment Ministers
endorsed a National Clean Air
Agreement and agreed to introduce emission standards for NRSIEE that
will bring Australia into line with existing international standards:
Ministers also noted that a working group of experts is on
track to provide interim advice this year on implementing the standards, with
the aim of introducing legislation into Federal Parliament in mid-2016.[11]
The forward of the National Clean Air Agreement
stated that ‘the potential for a national approach to manage non-road diesel
and marine engine emissions will be evaluated under the Agreement’s priority
setting process’.[12]
The details of the NRSIEE emission control framework are
included on the NRSIEE
webpage and the emission standards are based on the United States’ EPA and
equivalent international standards and will apply to:
- spark ignition engines rated at 19 kilowatts
and below used in household and commercial operations, including: lawn mowers,
ride-on mowers, mulchers, brush/line cutters, generators (includes onboard
marine), pumps, chain saws, and other small handheld or pushed/pulled equipment
- spark ignition engines used
in marine vessels including: outboard engines, personal watercraft and
stern-drive/inboard engines.[13]
Stationary engines, road vehicles subject to other
regulations, and diesel powered engines will not be regulated under this scheme.[14]
The webpage states that the scheme will be phased in and
apply to all new NRSIEE imported into Australia from 1 July 2018 and to all new
NRSIEE supplied to the Australian market from 1 July 2019.[15]
Emissions standards associated administrative arrangements
and proposed cost recovery fees and levies that will be applied to the scheme
have yet to be developed. A draft Cost Recovery Implementation
Statement will be released explaining the proposed fees for the costs of ‘the
Department in administering the new emissions standards and the levy that will
apply for imported products, including how these will be administered and
collected’.[16]
Draft rules will also be released for public consultation of the proposed
NRSIEE emissions standards and administrative arrangements.[17]
The emissions standards will apply to exhaust and
evaporative emissions from newly imported or manufactured NRSIEE.[18]
The proposed emissions standards may vary depending on the type of NRSIEE.[19]
According to a 2016 fact sheet:
The proposed standards are performance rather than
technology-based. In general, four-stroke and direct-injection two-stroke
engines will meet the standards, as will a range of low-emitting two-stroke
handheld equipment (e.g. some chainsaws and brush cutters). Conventional
two-stroke outboards and non-handheld equipment such as mowers would not meet
the new standards.[20]
The emissions standards ‘are expected to significantly
reduce the availability of two stroke motors for NRSIEE and increase the price
of other NRSIEE’.[21]
It has been reported that the scheme's scope may be
broadened in future years to include diesel-operated mining and farm equipment,
as well as forklifts.[22]
The Explanatory Memorandum states:
Consistent with the National Clean Air Agreement it is
anticipated that the first emissions-controlled products to be prescribed under
the framework will be NRSIEE products.[23]
It has been argued that since the Bill doesn't restrict
the definition of emissions to local air pollutants, it could also be used to
help meet greenhouse gas abatement goals.[24]
Committee consideration
Senate
Standing Committee for the Selection of Bills
The Senate Standing Committee for Selection of Bills decided
that the Bills should not be referred to committee for inquiry.[25]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills made
comments on significant matters in delegated legislation in the Product
Emissions Standards Bill 2017, the Product Emission Standards (Customs) Charges
Bill and the Product Emissions Standards (Excise) Charges Bill.[26]
The Committee also commented on the reversal of evidential burden of proof in
the Product Emissions Standards Bill 2017.
Product
Emissions Standards Bill
The Committee commented that the Bill leaves the definition
of an emissions-controlled product and the certification of such products, to delegated
legislation. In the Committee’s view ‘significant matters should be included in
primary legislation unless a sound justification for the use of delegated
legislation is provided’, but that in this Bill ‘matters
to be set out in the rules are central to the emissions standards framework
being established’.[27]
The Committee also noted that rules are used rather than regulations which are
subject to a higher level of executive scrutiny than rules.[28]
It also raised the issue that there are no specific consultation obligations
prior to making the rules other than with the Information Commissioner in
relation to information privacy matters.[29]
The Committee considered that the core elements of the new
emissions standards framework should be included in the primary legislation and
requested the Minister’s advice as to why the main elements of the framework
need to be included in delegated legislation.
The committee's view is that
significant matters, such as the core elements of the new emissions standards
framework, should be included in primary legislation unless a sound
justification for the use of delegated legislation is provided. In this regard,
the committee requests the Minister’s detailed advice as to:
- why it is considered necessary and
appropriate to leave most of the elements of this new scheme to delegated
legislation;
-
if significant matters are to be
included in delegated legislation, why it is appropriate to include these in
rules rather than regulations;
- why the Bill only provides that the
rules 'may' provide for the review of decisions under the Act, rather than the Bill
stating that decisions made regarding the certification of an
emissions-controlled product, the granting of exemptions relating to those
products, and the imposition of fees for service will be subject to merits
review; and
- the type of consultation that it is
envisaged will be conducted prior to the making of the rules and whether
specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance
with such obligations a condition of the validity of the legislative
instrument).[30]
The Committee further noted that while the Explanatory Memorandum
anticipates that the first emission-controlled products will be NRSIEE, the
Bill does not state this, or how they will be certified or exempted, and what
decisions under the certification process will be subject to merits review.[31]
Subclause 33 of the Bill provides that interfering
with a seized product is an offence, which carries a maximum penalty of six
months imprisonment. Subclause 33(2) provides that the offence does not
apply if the person who interferes with the seized product is acting in
accordance with a direction given to the person by the Minister. The person
will bear the evidential burden of establishing that their actions were
authorised by a Ministerial direction. This means that the person will need to
adduce or point to evidence that suggests a reasonable possibility that they
were acting in accordance with the Minister’s direction.[32]
The prosecution would then be required to discharge its legal burden to negate
the existence of the defence beyond reasonable doubt.[33]
The Committee raised concerns about the reversal of the evidential
burden of proof in subclause 33(2) and advised that it expected the reversal of
proof to be justified.[34]
The Explanatory Memorandum says that the person’s conduct in accordance with a
Ministerial direction would be known by the defendant who would not have
difficulty in providing the evidence.[35]
The Committee disagreed with this argument and stated:
It would appear that whether the Minister has issued a
direction for a person to engage in specified conduct would be a matter that the
Minister (and therefore the prosecution) would be particularly apprised of. The
committee considers that this matter appears to be one that would be more
appropriate to be included as an element of the offence, rather than as a
defence.[36]
Therefore:
The committee requests the Minister's detailed justification
as to the appropriateness of including the specified matter as an
offence-specific defence. The committee suggests that it may be appropriate if
clause 33(1) were amended to add an additional paragraph providing that a
person will commit the offence if the Minister has not given a direction to the
person to engage in that conduct (and the defence at subclause 33(2) were
removed). The committee also requests the Minister's advice in relation to this
matter.[37]
At the time of writing, the Minister had not provided
advice to the Committee.
Product
Emission Standards (Customs) Charges Bill and Product Emissions Standards
(Excise) Charges Bill
The amount of the charge on the importation and manufacture
of emissions-controlled products is to be prescribed in regulations or worked
out in accordance with a method prescribed in regulations.[38]
The Scrutiny Committee raised issues about the determination of the charge by
regulation and not primary legislation.
One of the most fundamental functions of the Parliament is to
impose taxation (including duties of customs and excise). The committee's consistent scrutiny view is
that it is for the Parliament, rather than makers of delegated legislation, to
set a rate of tax. The committee notes the statement in the explanatory
memorandum that it is intended that the charges are to be imposed for the
purposes of cost recovery. However, no guidance is provided on the face of the Bills
limiting the imposition of the charges in this way (for example, there is no
provision limiting the charges to 'the estimated cost of regulating the type of
emissions-controlled product'), nor are maximum charges specified.[39]
The Committee went on say:
The committee therefore requests the Minister's advice
as to whether at least some level of guidance
(for example, limiting
the charges to 'the estimated
cost of regulating the type of emissions-controlled product')
or a maximum level of charge
can be specifically included
in each Bill.
If no guidance is to be included on the face of the Bill, the
committee considers that it may be appropriate for the Bill to be amended to
increase parliamentary oversight by:
-
requiring the positive approval of
each House of the Parliament before new regulations under clause 6 come into
effect; or
-
providing that the regulations do not come into effect
until the relevant
disallowance period has expired (while
retaining the usual procedures in subsection 42(2) of the Legislation Act 2003 so that any regulations are taken
to be disallowed if a disallowance motion remains unresolved
at the end of the disallowance period).
The committee also requests the Minister's response in
relation to this matter.[40]
Policy
position of non-government parties/independents
While there do not appear to be any specific articulated
policies of non-government parties or independents on this issue, the senators
participating in the inquiry into the Impacts
on health of air quality in Australia included those from the Liberal
Party, National Party, ALP and the Australian Greens. As discussed above, that
inquiry recommended that the Commonwealth should implement a
national emissions standard for small non-road engines that are equivalent to
US EPA standards.[41]
Position of
major interest groups
The Blue Sky Alliance states that it is
working with government to make the emissions standards
for non-road engines ‘happen in a smooth and sensible way’.[42] This body was founded by
the Outdoor Power Equipment Association (OPEA) and the Australian Marine Engine
Council (AMEC) who represent the manufacturers of outdoor
equipment including lawn mowers, chainsaws and generators and marine engines,
outboard motors and personal watercraft. The two founding bodies sell over one
million engines per year.[43]
President of the OPEA, Tim McCarthy reportedly stated:
The OPEA has been working closely for many years with Blue
Sky Alliance and AMEC to bring a resolution regarding compliant off road
engines for the long-term benefit of all Australians. We very much welcome and
support the Bill that has now been tabled and look forward to a favourable
outcome on emissions standards.[44]
More generally, the Working towards a
National Clean Air Agreement: Discussion paper, released in 2015, received
over three hundred submissions from various stakeholder groups.[45]
The Department of the Environment and Energy prepared a summary
of the submissions.[46]
Financial
implications
The Decision Regulation Impact Statement (RIS) for
reducing emissions from non-road spark ignition engines and equipment (NRSIEE) estimated
a substantial net benefit of setting of NRSIEE emission standards through
Commonwealth regulation of $636 million over the period 2016 to 2035.[47]
This was due primarily to the benefits to the community through the reduction
in emissions and resulting avoidance of health costs of an estimated $1.72
billion.[48]
Total cost to business for this period was estimated to be $5 million and the
cost to government for the same period was estimated to be $9 million.[49]
At present there is no clear indication of the financial
implications of the Bills. The Explanatory Memorandum states:
The cost of implementation will depend on the type of
emissions-controlled products that are prescribed in rules for the purposes of
the Bill. The cost of regulating different types of emissions-controlled
products will be considered on a case-by-case basis as part of the regulatory
impact analysis process, the requirements of which will need to be met prior to
the products being prescribed in rules made under the Bill. Costs associated
with regulating emissions-controlled products will be offset by revenue from
cost recovery activities where this is consistent with the Australian
Government Charging Framework.[50]
This would be through a charge on the import and domestic manufacture of
emissions-controlled products and fees for services provided in the performance
of functions under the Bill. Consistent with Australian Government policy, the
amount of any applicable charge for different types of emissions-controlled
products, or fees for services provided under the Bill, will be determined on a
case-by-case basis through a Cost Recovery Implementation Statement.[51]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[52]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bills do not raise human rights concerns.[53]
Key issues
and provisions
Product
Emissions Standards Bill 2017
Emissions reduction measures
The 2015 National Clean Air Agreement implements the
decision of Australia’s Environment Ministers to establish emission standards
for NRSIEE that are targeted towards reducing air pollution and improving health
outcomes.[54]
The Product Emissions Standards Bill 2017 is the main Bill that will establish
a national framework for the regulation of emissions-controlled products to
ensure they meet national emissions standards.
The Bill will facilitate this by:
(a) enabling
the Minister to prescribe products as emissions-controlled products and make
rules relating to those products;
(b) providing
mechanisms in the rules for emissions-controlled products to be certified to
specified emissions standards;
(c) providing
a mechanism for the rules to exempt persons or products from the operation of
one or more provisions of the Bill;
(d) establishing
offences and civil penalty provisions relating to the import of an
emissions-controlled product to Australia, or supply of that product within
Australia, if the product is not certified or marked in accordance with the
rules for that product;
(e) triggering
the compliance and enforcement provisions of the Regulatory Powers (Standard
Provisions) Act 2014 and providing for additional compliance and
enforcement powers to support the objectives of the Bill;
(f) enabling
the sharing of information obtained under the Bill with other agencies and the
publication of certain information relating to an emissions-controlled product;
(g) enabling
the delegation of the Minister’s and the Secretary’s functions and powers under
the Bill, or the Regulatory Powers Act (as the case may be); and
(h) requiring a review of the operation of the Bill at
regular intervals.
The Excise Charges Bill and the Customs Charges Bill
complement the Bill by establishing a mechanism for imposing a charge on the
import or domestic manufacture of emissions-controlled products to recover the
costs of implementing the product emissions standards framework where
appropriate.
The Consequential Provisions Bill makes a consequential
amendment to the Customs Act clarifying that emissions-controlled
products imported or exported in contravention of the Bill are not forfeited to
the Crown under section 229 of that Act.[55]
As noted previously, one issue with the Bill is the extent
to which significant aspects of the scheme are not included in the Bill.
Instead, the Bill provides an overarching framework, while details of how the
scheme will operate are left to rules made by the Minister under proposed clause
51 of the Bill.
Preliminary
Provisions
Clause 3 outlines the objects of the Bill that
include the regulation of emissions from certain products by setting emissions
standards.
Clause 7 includes definitions used in the Bill.
Three important matters: ‘certified for the purposes of this Act’, ‘emissions-controlled
product’ and ‘emissions standards’ are not clearly defined in this section but
are to be prescribed in rules made by the Minister under clause 51.
These are fundamental to the legislation and the Senate Standing Committee for
the Scrutiny of Bills considered that significant matters should be included in
primary legislation unless a sound justification for the use of delegated
legislation is provided.[56]
The Explanatory Memorandum explains in relation to ‘certified
for the purposes of this Act’:
As the Bill provides a framework to prescribe different types
of emissions-controlled products over time, this definition provides the necessary
flexibility to prescribe different certification methods for different types of
emissions-controlled products. Ultimately the method of certification that is
prescribed in the rules will depend on the type of product and the domestic
and/or international requirements that may exist in relation to the product.[57]
The term ‘regulatory authority’ is defined to include ‘a
regulatory authority of, or located in, a foreign country’. This will permit
recognition of a product that has been certified by a body such as the United
States’ EPA as being compliant with a relevant US emission standard.
Emissions-controlled
product
Part 2 allows rules to be made that prescribe a
product as an emission-controlled product and provide that such a product can
be certified where it meets an emissions standard. Put differently, this enables
rules to list products that are controlled and a process to certify those
products if they meet the relevant standard.
Clause 9 states that the ‘rules may prescribe a
product as an emissions-controlled product’. Prescribing the product as an
‘emissions-controlled product’ means that it cannot be imported or supplied
unless it is certified (unless covered by an exemption) and triggers the
operation of offence and civil penalty provisions of Part 3 of the Bill.[58]
The Explanatory Memorandum provides the following reasons for prescription in
rules and it states that it is anticipated that NRSIEE will be the first of
different types of emissions-controlled products prescribed by rules:
Emissions-controlled products could be prescribed to refer to
individually listed products or classes of products, and could include a
specific engine as well as the equipment which contain these engines. For
example, consistent with the National Clean Air Agreement, it is
anticipated that the first emissions-controlled products to be prescribed will
be NRSIEE. It is possible that the rules made for NRSIEE will prescribe two broad
categories of NRSIEE: new small non-road spark ignition engines (up to 19
kilowatts in power) and new marine spark ignition propulsion engines.[59]
Clause 10 deals with certification of
emissions-controlled products that provides a level of assurance that such
products will meet relevant emissions standards in practice.[60]
Subclause 10(1) states that rules may provide for
an emissions-controlled product to be certified for the purposes of the
proposed Act. The Explanatory Memorandum says that this will provide
flexibility to accommodate different products, standards and certification
processes, to facilitate the potential regulation of different types of
emissions-controlled products over time.[61]
Subclause 10(2) requires that the
emissions-controlled product certification rules must not enable a product to
be certified unless one of two criteria is met. Either: the Secretary of the
Environment Department must be satisfied that it complies the emissions
standards set out in the rules for that product or; the product is certified by
a regulatory authority specified in the rules as meeting an emissions standards
specified in the rules for that product.
The first is where the product is certified through an
Australian certification process and the second is where the product is
certified as meeting international standards that also meet Australian
standards.
The Explanatory Memorandum provides the following reasons
for this.
... it is anticipated that NRSIEE will be the first
emissions-controlled products prescribed under this framework. The
manufacturers and suppliers of NRSIEE operate in an international market and, currently,
all NRSIEE engines supplied to the Australian market are imported from a range
of countries (predominantly China, Japan and the USA). There is currently no
Australian manufacture of engines for NRSIEE, although some Australian
companies import engines and then install them in their locally manufactured
equipment. Consistent with good regulatory practice, the rules may accept
products certified as meeting international emissions standards where they
provide the level of emission control desired in Australia. Adoption of
suitable international standards also reduces the regulatory burden on
Australian companies importing emissions-controlled products into the
Australian market.
Not all NRSIEE, however, are certified overseas in a
comparable market. To enable manufacturers to demonstrate that their
emissions-controlled products can meet requirements equivalent to that set by
the international standards, the rules may also set out an Australian
certification process (for both domestic and internationally manufactured
products).[62]
Subclauses 10(3) and 10(4) enable the rules to
include other certification requirements, such as:
- applications
for certification
- processes
and criteria for certification, including testing
- processes
for suspending or revoking certification and
- the
use of marks to indicate certification.
Clause 11 allows the rules to provide for the
exemption of a specified emissions-controlled product from one or more
provisions (paragraph 11(1)(a)) and for the exemption of a specified
emissions-controlled product or person from one or more provisions of the
proposed Act in circumstances set out in the rules (paragraph 11(1)(b)).
The Explanatory Memorandum states that the first type of exemption
could be used to delay the commencement of offence and civil penalty provisions
of the Bill to permit market-adjustment to the new rules for NRSIEE:
For example, it is anticipated that the import and supply
prohibitions relating to NRSIEE emissions-controlled products, once prescribed,
would not commence until 1 July 2018 and 1 July 2019, respectively.[63]
The second exemption allows for certain circumstances
where there are no existing compliant products available for important uses:
For example, the emissions-controlled product is associated
with specialised emergency or rescue activities, national security operations,
testing or research purposes and the available products are not able to meet
the emissions standard required for certification. The rules could provide for
an exemption to allow these emissions-controlled products to be imported or
supplied. In this way, being able to specify these exemptions ensures that the
scheme operates efficiently and unintended market impacts are reduced.[64]
Subclauses 11(3) and 11(4) permit the rules to
provide processes to obtain, vary, suspend and revoke exemptions and for the
Secretary to make decisions in relation to exemptions.
Enforcing
product emissions standards
Part 3 makes it an offence to import or supply
uncertified emission-controlled products, mark uncertified products or
incorrectly mark emissions-controlled products. The maximum penalties for each
of these offences are 60 penalty units ($12,600) for a strict liability offence
and 120 penalty units ($25,200) for a civil penalty.[65]
These offences are not punishable by imprisonment.[66]
The maximum penalty for strict liability offences by a body corporate is 300
penalty units ($63,000) and 600 penalty units ($126,000) for a civil penalty
provision.[67]
Clause 13 prohibits the importation of an
emissions-controlled product that is not certified.
Clause 14 prohibits the importation of a certified
emissions-controlled product that is not marked as required by the rules.
Clauses 15 prohibits the supply of an
emissions-controlled product that is not certified.
Clause 16 prohibits the supply of a certified
emissions-controlled product that is not marked as required by the rules. ‘Supply’
is defined broadly in clause 7 as meaning ‘supply in the course of
trading or commercial activities’ and includes offering to supply by displaying
or advertising, as well as supplying by way of exchange, gift, loan or hire.
Clause 17 prohibits the application of a mark to an
emissions-controlled product that is not certified or the certification of
which has been suspended.
Clause 18 prohibits the application of a mark to an
emissions-controlled product where that mark is not in accordance with the
requirements of the rules.
Each of these provisions creates both a strict liability
offence and a civil penalty provision. Strict liability offences are those
where fault elements (intention, knowledge, recklessness or negligence) are not
required. However, mistake of fact is a defence.[68]
The civil penalty provisions in the Bill will be enforceable under the Regulatory Powers
(Standard Provisions) Act 2014 (Regulatory Powers Act). The
implications of this are explored in the discussion of Part 5 of the Bill,
below.
Record
keeping
Part 4 requires importers and suppliers of emissions-controlled
products to keep records and make them available to the Secretary of the
Department.
Clause 20 states that where the rules require persons
who import or supply emissions-controlled products to keep particular records
and the person contravenes this requirement, it is a strict liability offence
with a maximum penalty of 40 penalty units ($8,400) for an individual and 200
penalty units ($42,000) for a corporation; or a civil penalty of 80 penalty
units ($16,800) for an individual and 400 penalty units ($84,000) for a
corporation.[69]
Clause 21 permits the Secretary of the Department to
write to a person requiring them to provide information that is required to be
kept by the rules, where there is a reasonable suspicion that a provision of
the Bill has been, or is being, contravened and the requested information is
relevant to the contravention. Failure to provide this information is a strict
liability offence with a penalty of 40 penalty units or a civil penalty of 80
penalty units for an individual.
Clause 22 states that where the rules prescribe a
reporting period for an emissions-controlled product manufactured in Australia,
the manufacturer is in contravention if the report is not supplied to the
Secretary within 60 days after the end of reporting period. The maximum penalty
for an individual is 60 penalty units for a strict liability offence and 120
penalty units for a civil penalty.
Regulatory
powers
Part 5 provides for additional compliance and
enforcement powers for the enforcement of the emissions standards framework
through application of relevant provisions of the Regulatory Powers
(Standard Provisions) Act 2014 (the Regulatory Powers Act). Authorised
inspectors are granted monitoring, investigation and enforcement powers so as
to be able to enforce the obligations created under the Bill. Monitoring powers
are provided under Part 2 of the Regulatory Powers Act while
investigation powers are provided under Part 3 of that Act. Enforcement,
including civil penalties, infringement notices, enforceable undertakings and
injunctions are provided under Parts 4 to 7 of the Regulatory Powers Act.
A number of consequences flow from the application of the Regulatory
Powers Act, including as discussed above, maximum penalties for
corporations that contravene a civil penalty provision being five times the
pecuniary penalty specified in the relevant provision.[70]
The Regulatory Powers Act also sets out how the criminal and civil penalties
in the Bill interact, by providing:
- a
court cannot make a civil penalty order against a person who has been convicted
of an offence constituted by the same conduct[71]
- proceedings
for a civil penalty order are stayed if criminal proceedings are commenced
against the person for an offence constituted by the same conduct. The civil
proceedings may be resumed if the person is not convicted of the offence[72]
- criminal
proceedings may be commenced against a person regardless of whether a civil
penalty order has been made against the person for the same conduct. However,
evidence given in the civil proceedings is not admissible in the criminal
proceedings.[73]
Forfeiture
of emissions-controlled products
Part 6 provides for the forfeiture of an emissions-controlled
product when a provision of Part 3 has been proved to have been contravened or
when such a product has been seized by an inspector who reasonably suspects that
Part 3 has been contravened in relation to the product. In the second instance
a court may return the product to its owner or may order relevant compensation.
Clause 31 states that where a person is convicted of
an offence or ordered to pay a civil penalty for contravening a provision of
Part 3, the emissions-controlled product is forfeited to the Commonwealth.
Clause 32 allows an inspector to seize such a product
that has been forfeited. The seizure can occur by attaching a notice to the
product specifying its identity, why it has been seized and the reason for the
seizure. The inspector must give a copy of such a notice to the owner or the
person from whom the product was seized.
Subclause 33(1) makes it an offence for a person to
move, alter or interfere with a seized emissions-controlled product that has
had a notice, referred to above, attached. The maximum penalty is imprisonment
for six months.
Subclause 33(2) states that the offence in subclause
33(1) does not apply if the person acts in accordance with a direction
given to the person by the Minister. Importantly, a person seeking to rely on
this as a defence needs to provide supporting evidence, as set out in the note
to this subsection:
The defendant bears an evidential burden in relation to the
matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
This note causes a reversal of evidential burden of proof.
As mentioned above, the Senate Standing Committee for the Scrutiny of Bills raised
concerns about this matter and questioned the justification provided in the Explanatory
Memorandum.[74]
Subclause 33(3) states that a person commits an
offence if they do not take reasonable steps to prevent a product that is
subject to a notice under subsection 32(3) from being moved, altered or
interfered with except in accordance with a direction from the Minister. The
maximum penalty for this offence is six months imprisonment.
Clause 34 deals with forfeiture notices where an
inspector seizes an emissions-controlled product under Part 3 of the Regulatory
Powers Act on the reasonable suspicion of a contravention of Part 3 of the
Bill. Under subclause 34(2) the inspector may give a written forfeiture
notice to the owner of the product within seven days of seizure of the product.
Where the owner cannot be identified, the forfeiture notice can be given to the
person from whom the product was seized. According to subclause 34(4),
the notice must identify the product and its seizure, specify the reason for
seizure and state that the product will be forfeited to the Commonwealth unless
a court orders the product to be returned following application under clause
35.
The owner of the product that has been seized or the
person from whom it has been seized may, within 60 days of the receipt of the
forfeiture notice, apply under subclause 35(2) to the Federal Court of
Australia, the Federal Circuit Court of Australia or a court of a state or territory
that has jurisdiction to have the product returned. Subclause 35(4)
states that court must order the product returned if it is satisfied that no
provision of Part 3 is contravened in relation to the product.
Subclauses 35(5) and 35(6) state that the
Commonwealth must take reasonable steps to return the product where the court
orders its return, except where the product is to be used as evidence in
proceedings; returning the product could cause imminent risk of death or
serious injury or serious damage to the environment; or the inspector is
authorised by a law or court order to retain, destroy or dispose of the
product.
Under clause 36, the product for which a forfeiture
notice has been given under clause 34 is forfeited to the Commonwealth if no
application under clause 35 has been made or the court has decided not
to order its return.
Under clause 37, the owner of the forfeited
emissions-controlled product may apply to a court for compensation. The court
may decide to order the Commonwealth to pay market value compensation for the
product to the applicant if it satisfied that the applicant owned the product
prior to its forfeiture and either Part 3 of the Regulatory Powers Act (setting
out investigation processes) was not complied with in relation to the seizure
of the product, or no provision of Part 3 of this Bill was contravened
if the product was forfeited under paragraph 36(a).
Clause 39 states that products forfeited under clauses
31 or 36 must be dealt with and disposed of in accordance with the
directions of the Minister, but must not be sold.
Miscellaneous
According to clause 41, the Secretary may appoint an
Australian Public Service (APS) employee to be an inspector, who must comply
with any directions from the Secretary.
Clause 42 states that Secretary may publish
information about emissions-controlled products certified under the Bill as
well as the exemption of an emissions-controlled product or a person from the
provisions of the Bill. However, there is no requirement for the publication of
this information.
Clause 43 permits the disclosure of information
obtained under the Bill by the Secretary to the Australian Border Force or
other agency, body or person prescribed in the rules, if the information will
‘enable or assist the agency, body or person to exercise its powers or perform
its functions or duties’.
Clause 44 permits the Minister to require, by written
notice under subclause 44(2), a person who is suspected of engaging or
having engaged in conduct that is in contravention of the Bill to conduct, or
have conducted, an audit of a person’s compliance, if the Minister is satisfied
that this would be in the public interest. Subclause 44(3) requires
the notice to specify whether the person must arrange another person to carry
out the audit, the matters to be covered by the audit, the time period of the
audit, the form and content of the audit report and when that report must be
given to the Minister. If the person fails to comply with this direction to
conduct a compliance audit, the person contravenes subclause 44(5),
which is a strict liability and civil penalty provision. The maximum penalty is
40 penalty units for the strict liability offence and 80 penalty units for the
civil penalty provision.
Clause 45 permits the Minister to delegate, by
writing, any or all of his or her powers or functions to the Secretary or an
SES employee or acting SES employee of the Department, except clause 51,
which allows the Minister to make rules under the Bill. Those exercising such
Ministerial powers and functions must comply with any Ministerial directions.
Clause 46 permits the Secretary to delegate, by
writing, any or all his or her powers or functions under the Bill to an SES
Employee, acting SES employee or APS employee of Executive Level 2 or above of
the Department. Those exercising such powers and functions of the Secretary
must comply with any directions of the Secretary.
Clause 47 requires the Minister to cause a review of
the operation of the proposed Act as soon as possible after seven years from its
commencement and then at intervals of no longer than 10 years. The written
report of these reviews must be tabled in both Houses of parliament within 15
sittings days after the report has been received by the Minister.
Under clause 51 the Minster may make rules
prescribing matters required or permitted by the Bill or necessary or
convenient for carrying out or giving effect to the Bill. The rules are
disallowable instruments that are disallowable by either House of Parliament.
Subclause 51(2) states that the rules may provide for
charging fees for services provided in performing functions under the Bill as
well as review of decisions made under the Bill. The Explanatory Memorandum
used an example where a fee may be charged in relation to an application for
certification or an exemption.[75]
The Explanatory Memorandum makes the following comment about
review of decisions:
It is appropriate that the rules, and not the Bill, contain
the details regarding merits review as the decisions for which merits review
will be available will be specified in the rules. This will include decisions
made under the rules for the certification of an emissions-controlled product,
the granting of exemptions relating to those products, and the imposition of
fees for service.[76]
According to the Explanatory Memorandum, subclause
51(3) is designed to permit an emission standard to adopt existing
standards that apply in international markets to allow the Australian market to
keep pace international industry developments.[77]
It provides that a rule setting out an emission standard for the purpose
of paragraph 10(2)(a) may incorporate any matter contained in an
instrument as in force or existing from time to time, if produced by one of the
following international organisations:
(a) the International Electrotechnical Commission
(b) the International Organization for Standardization;
(c) the United Nations Economic Commission for Europe; or
(d) any other organisation that is specified in the rules.[78]
Subclause 51(4) states that rules
specifying an emissions standard for the purposes of subparagraph
10(2)(b)(ii) may specify a standard as in force or existing from time to
time. The Explanatory Memorandum gives the following reasons for this
subclause:
This will enable the rules to allow the import and supply of
emissions-controlled products which are certified to subsequent versions of
adopted overseas standards, without the need to amend the rules to reflect an
update in those standards. This approach facilitates trade without compromising
standards, as it enables products that produce lower emissions to be readily
supplied to the Australian market.
In adopting existing standards from time to time
consideration has been given to the fundamental principle of the Legislation
Act 2003, and of access to justice, that people are easily able to
understand their rights and obligations at law.
An example of standards to be adopted in rules include the
following primary standards relating to NRSIEE:
(a) the US Code of Federal
Regulations Title 40 Parts 1045 and 1054; and
(b) the EU standard for non-road engines.[79]
There are limits on the rules that can be made. Subclause
51(5) provides:
To avoid doubt, the rules may not
do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated 10 Revenue Fund under an appropriation in this
Act;
(e) directly amend the text of this Act.
Subclause 51(6) states that Minister must consult
with the Information Commissioner in relation to privacy matters before making
rules permitting the disclosure of information to agencies, bodies or persons
under paragraph 43(1)(b). The Senate Standing Committee for the Scrutiny
of Bills commented:
While subclause 51(6) provides that consultation must be
undertaken with the Information Commissioner before rules are made regarding
the persons to whom information can be disclosed, no other specific
consultation obligations are included in the Bill.[80]
Subclause 51(7) allows the rules to provide for the collection
and recovery of charges imposed by the proposed Product Emissions Standards
(Customs) Charges Act 2017 and the Product Emissions Standards (Excise)
Charges Act 2017.
Product
Emissions Standards (Customs) Charges Bill 2017
Clause 5 states that a charge will be imposed on
the importation of emissions-controlled products and clause 6 states
that amount of such a charge will be prescribed in regulations or worked out in
accordance with a method prescribed in regulation. Clause 7 provides
that the charge on the importation of an emissions-controlled product is
payable by the importer.
The Bill and the Product Emissions Standards (Excise)
Changes Bill will allow full recovery of the costs associated with regulating
emissions-controlled products, through the imposition of a charge on the import
and manufacture of emissions-controlled products plus the imposition of fees
for services in the performance of functions under the Producer Emissions
Standards Bill.[81]
The Explanatory Memorandum discusses clause 6:
This clause would enable the amount of the charge to be
imposed on the importation of an emissions-controlled product to be prescribed
by the regulations or worked out in accordance with a method prescribed by the
regulations. As the amount of the charge includes a nil amount (see the
definitions at clause 4), the regulations may prescribe a threshold below which
the liability to pay the charge is waived. Alternatively, the regulations may
also prescribe a cap on the amount of charge to be paid for a particular
period. A method prescribed by the regulations may include, for example, the
ability for the charge to increase in accordance with the Consumer Price Index,
or some other specified formula.[82]
The comments by Senate Standing Committee for the Scrutiny
of Bills on clause 6 are included above.
Clause 8 provides for the Governor-General to make
regulations under the proposed Act.
Product
Emissions Standards (Excise) Charges Bill 2017
Clauses 5–8 mirror the Product Emissions Standards
(Customs) Charges Bill in relation to the manufacture of emissions-controlled
products.
Product
Emissions Standards (Consequential Provisions) Bill 2017
Schedule 1 amends section 229 of the Customs Act 1901
to provide that goods are not forfeited to the Commonwealth merely because they
are imported or exported in contravention of the proposed Product Emissions
Standards Act. This is because Part 6 of the Product Emissions Standards
Bill 2017 establishes a process by which emissions-controlled products may be
forfeited to the Commonwealth through either automatic forfeiture (Division 2
of Part 6 of the Bill) or general forfeiture (Division 3 of Part 6 of the
Bill).[83]
[1]. Meeting of Environment Ministers (MEM), Agreed statement, MEM Meeting, 6, Sydney,
25 November 2016, p. 4.
[2]. Department
of the Environment and Energy (DEE), Reducing
emissions from non-road spark ignition engines and equipment: Decision Regulation
Impact Statement, DEE, Canberra, September 2015, p. 7.
[3]. J
Frydenberg, ‘Second
reading speech: Product Emissions Standards, Bill 2017’, House of
Representatives, Debates, (proof), 10 August 2017, p. 2.
[4]. DEE,
Reducing
emissions from non-road spark ignition engines and equipment: Decision Regulation
Impact Statement, op. cit., p. 7.
[5]. Senate
Community Affairs References Committee, The
impacts on health of air quality in Australia,
The Senate, Canberra, August 2013, p. 52.
[6]. DEE,
Reducing
emissions from non-road spark ignition engines and equipment: Decision
regulation impact statement, op. cit., p. 7.
[7]. Senate
Community Affairs References Committee, The
impacts on health of air quality in Australia,
op. cit., p. 54.
[8]. G Hunt (Minister for the Environment), Agreed statement: Environment Ministers meeting, media release, 29 April 2014.
[9]. DEE, Reducing
emissions from non-road spark ignition engines and equipment: Decision Regulation
Impact Statement, op. cit., pp. 45–55.
[10]. Ibid.,
p. 55.
[11]. Meeting of Environment Ministers (MEM), Agreed statement, MEM Meeting, 4, 15
December 2015, p. 1.
[12]. National
Clean Air Agreement, Commonwealth of Australia, 2015, p. 4.
[13]. DEE,
‘Non-road
spark ignition engines and equipment’, DEE website.
[14]. Ibid.
[15]. Ibid.
[16]. Ibid.
[17]. Ibid.
[18]. DEE,
Emission standards for non-road spark ignition engines and equipment,
Environment protection fact sheet, DEE, 2016.
[19]. Ibid.
[20]. Ibid.
[21]. Department
of Prime Minister and Cabinet (PM&C), ‘COAG
Decision Regulation Impact Statement: Meeting of Environment Ministers’, PM&C website.
[22]. Footprint,
‘Frydenberg
introduces air pollution bill’, Footprint website, 10 August 2017.
[23]. Explanatory
Memorandum, Product Emissions Standards Bill 2017, p. 2.
[24]. Footprint,
‘Frydenberg
introduces air pollution bill’, op. cit.
[25]. Senate
Selection of Bills Committee, Report,
9, 2017, 17 August 2017.
[26]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, 16 August 2017, pp. 12–20.
[27]. Ibid.,
p. 12.
[28]. Ibid.,
p. 13.
[29]. Ibid.,
p. 14. The Committee noted the general consultation requirements under section
17 of the Legislation
Act 2003.
[30]. Ibid.,
p. 14.
[31]. Ibid.,
p. 12.
[32]. Section
13.3 of the Criminal
Code.
[33]. Ibid.,
subsection 13.1(2).
[34]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, op. cit., p. 15.
[35]. Explanatory
Memorandum, Product Emissions Standards Bill 2017, p. 10.
[36]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, op. cit., p. 16.
[37]. Ibid.,
p. 16.
[38]. Ibid.,
p. 19.
[39]. Ibid.,
p. 20.
[40]. Ibid.,
p. 20.
[41]. Senate
Community Affairs References Committee, The
impacts on health of air quality in Australia, op. cit., p. 54.
[42]. Blue
Sky Alliance, ‘Proposed
emission standards: the story of emissions’, Blue Sky Alliance website.
[43]. Blue
Sky Alliance, ‘About the
Blue Sky Alliance: who we are’, Blue Sky Alliance website.
[44]. A
Shaw, ‘Small
spark engine emissions standards: new legislation’, Turfmate website, n.d.
[45]. DEE,
‘National
Clean Air Agreement: public consultation’, DEE website.
[46]. DEE,
Working
towards a National Clean Air Agreement: summary of submissions, July
2015.
[47]. Office
of Best Practice Regulation, Reducing
emissions from non-road spark ignition engines and equipment: Decision Regulation
Impact Statement, September 2015, p. 55.
[48]. Ibid.
[49]. Ibid.,
p. 54.
[50]. Department
of Finance (DoF), ‘Australian
Government charging framework’, DoF website, 15 May 2017.
[51]. Explanatory
Memorandum, op. cit., p. 2.
[52]. The
Statement of Compatibility with Human Rights can be found at page 4 of the
Explanatory Memorandum to the Bills.
[53]. Parliamentary
Joint Committee on Human Rights, Report,
8, 2017, Parliament of Australia, Canberra, 15 August 2017, p. 81.
[54]. National
Clean Air Agreement, op. cit.
[55]. Explanatory
Memorandum, op. cit., p. 1.
[56]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, op. cit., p. 12.
[57]. Explanatory
Memorandum, op. cit., p. 15.
[58]. Ibid.,
p. 16.
[59]. Ibid.,
pp. 16–17.
[60]. Ibid.,
p. 17.
[61]. Ibid.,
p. 18.
[62]. Ibid.,
pp. 17–18.
[63]. Ibid.,
p. 18.
[64]. Ibid.,
pp. 18–19.
[65]. The
value of a penalty unit is defined by section 4AA of the Crimes Act 1914
(Cth) and has a current value of $210.
[66]. Explanatory
Memorandum, op. cit., p. 22.
[67]. Ibid.,
p. 22. The penalty for a body corporate for a strict liability offence is
derived from subsection 4B(3) of the Crimes Act 1914, which enables a court
to ‘impose a pecuniary penalty not exceeding an amount equal to 5 times the
amount of the maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence’. Similarly, subsection 82(5) of
the Regulatory
Powers (Standard Provisions) Act 2014 (which is applied by clause 26
of the Bill) allows the court to impose a penalty on a body corporate that is
five times the pecuniary penalty specified for the relevant civil penalty
provision.
[68]. Section
6.1, Criminal
Code Act 1995.
[69]. The
penalty for a body corporate for a strict liability offence is derived from
subsection 4B(3) of the Crimes Act 1914, which enables a court to
‘impose a pecuniary penalty not exceeding an amount equal to 5 times the amount
of the maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence’. Similarly, subsection 82(5) of
the Regulatory
Powers (Standard Provisions) Act 2014 (which is applied by clause 26
of the Bill) allows the court to impose a penalty on a body corporate that is
five times the pecuniary penalty specified for the relevant civil penalty
provision.
[70]. Subsection
82(5) of the Regulatory
Powers (Standard Provisions) Act 2014.
[71]. Ibid.,
section 88.
[72]. Ibid.,
section 89.
[73]. Ibid.,
sections 90 and 91.
[74]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, op. cit., pp. 15–16.
[75]. Ibid.,
p. 43.
[76]. Ibid.,
p. 43.
[77]. Ibid.,
p. 44.
[78]. Ibid.,
p. 43.
[79]. Ibid.,
p. 44.
[80]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, op. cit., p. 14.
[81]. Explanatory
Memorandum, op. cit., p. 48.
[82]. Ibid.,
pp. 46–47.
[83]. Ibid.,
p. 50.
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