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Environment
Protection and Biodiversity Conservation Amendment Bill 2013
Introduced into the House of
Representatives on 13 March 2013
Portfolio: Sustainability,
Environment, Water, Population and Communities
Summary of committee view
1.1
The committee seeks
clarification as to whether the proposed civil penalty provisions in the bill
could be considered to be 'criminal' charges' for the purposes of articles 14
and 15 of the International Covenant on Civil and Political Rights (ICCPR)
given the significant penalties that may be imposed under them, and seeks
information about how the imposition of an evidential burden on a defendant is
justifiable.
Overview
1.2
This bill seeks
to amend the Environment Protection and Biodiversity Conservation Act 1999
to:
- establish a
matter of National Environmental Significance in relation to protection of
water resources from coal seam gas or large coal mining development, to require
environmental impact assessment and approval processes for actions relating to
this development that may significantly impact on a water resource; and
- to create civil
penalty and offence provisions for taking actions involving coal seam gas or
large coal mining development that may significantly impact on a water resource
without approval (or without exemption from the need to obtain approval).
Compatibility with human
rights
1.3
The bill is
accompanied by a self-contained statement of compatibility that states that the
proposed new criminal offences, extension of the scope of application of
existing offences, and strict liability engages the right to be presumed
innocent under article 14(2) of the ICCPR. It concludes that the bill is
compatible with human rights:
because to
the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate to the objective of preventing people from taking
actions involving coal seam gas development or large coal mining development
that may have a significant impact on a water resource without an approval or
exemption from obtaining an approval.[1]
1.4
The
statement of compatibility does not identify any specific limitations on rights
or provide any analysis of them, so it is difficult to see how the conclusion
that any limitations are justified was reached. The assessment of whether a limitation
on a right is permissible requires a contextual analysis which involves
identification of: the encroachment on the right, the objective being pursued
and its legitimacy, and the reasonableness and proportionality of the measures
adopted to the achieving that goal. A general assertion that any limitations
are justified without such detailed analysis is not sufficient for the purposes
of justifying restrictions on the enjoyment of human rights.
Right
to respect for one’s home/right to health/right to water
1.5
The bill may be
viewed as promoting the enjoyment of a number of rights not mentioned in the
statement of compatibility. The committee has already considered the issue of
proposed regulation of coal seam gas mining and identified a number of rights
that may be engaged,[2]
including:
- the right of
persons not to have their homes unlawfully or arbitrarily interfered with under
article 17 of the ICCPR. International human rights law has accepted that this
right can provide some protection against pollution that affects a person’s
quiet enjoyment of their home and also extends to any damage to residential
property caused by subsidence that might result from such mining;
- the right of
persons to the highest attainable standard of health guaranteed by article 12
of the International Covenant on Economic, Social and Cultural Rights (ICESCR),
to the extent that the bill seeks to address concerns about pollution; and
- the right to an
adequate standard of living (including the right to water) guaranteed by
article 11 of the ICESCR, to the extent that it seeks to avoid contamination of
water supplies.
Civil
penalty provisions as involving ‘criminal’ charges
1.6
The bill
proposes inserting a new Subdivision FB into Division 1 of Part 3 of the Environment
Protection and Biodiversity Conservation Act 1999. The proposed new
Subdivision creates a number of criminal offences and civil penalty provisions.[3]
Both relate to the same conduct.
1.7
The criminal
offences created by proposed new section 24E are punishable by a maximum penalty
of 7 years’ imprisonment or 420 penalty units (currently $71,400), or both. The
criminal offence provisions also impose an evidential burden on a defendant in
relation to a number of issues.
1.8
The civil
penalty provisions provide for different maximum penalties for individuals and
corporations. These penalties are significant: the maximum penalties that may
be imposed under the civil penalty provisions in the proposed new section 24D
are 5,000 penalty units (currently $850,000) for an individual and 50,000
penalty units for a body corporate (currently $8.5 million).
1.9
While the civil
penalty provisions are designated as ‘civil’ penalties for the purposes of
Australian law, they may nonetheless qualify as ‘criminal’ offences for the
purposes of human rights law, if they meet certain criteria. If so, they would
attract the procedural and other protections guaranteed under articles 14 and
15 of the ICCPR in relation to the determination of criminal charges.
1.10
In determining
whether the imposition of a penalty for particular conduct involves the
determination of a ‘criminal charge’, international jurisprudence has
identified the following factors to be taken into account: the classification
of the act in domestic law, the nature of the offence, the purpose of the
penalty, and the nature and the severity of the penalty. Classification as
‘civil’ under Australian law is not determinative. Where a prohibition is
general in application, where the penalty is punitive and intended to deter
(rather than award compensation for loss), and any financial penalty is
significant, it may well be classified as involving a criminal charge and
penalty for the purposes of article 14 of the ICCPR.
Right
to be presumed innocent - evidential burden
1.11
The imposition
of an evidential burden on a defendant in relation to the matters set out in
proposed new section 24E(4), which provide a defence to the offences created by
proposed section 24E, encroaches on the right to be presumed innocent
guaranteed by article 14(2) of the ICCPR. A specific justification of this
provision is required.
1.12
Proposed new
section 24D(4) also imposes an evidential burden in relation to certain matters
that constitute a defence to a proceeding alleging a violation of the civil
penalty provisions contained in proposed new section 24D. If these civil
penalties provisions are considered ‘criminal’ for the purposes of article 14
of the ICCPR, it is necessary to justify the encroachment on the right to be
presumed innocent in article 14(2) of the ICCPR.
1.13
The
committee intends to write to the Minister for Sustainability, Environment,
Water, Population and Communities to:
(a) seek
clarification as to why the proposed civil penalty provisions in the bill should
not be considered 'criminal charges' for the purposes of articles 14 and 15 of
the ICCPR in light of the significant penalties that may be imposed for breach
of those provisions; and
(b) ask how
the imposition of an evidential burden on a defendant under proposed new
sections 24D and 24E is justifiable.
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