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Clean Energy Legislation (Carbon Tax
Repeal) Bill 2013
[No. 2]
Portfolio:
Environment
Introduced: House of
Representatives, 23 June 2014
1.1
The Clean Energy Legislation (Carbon Tax Repeal) Bill 2013 [No. 2] is
part of a package of bills that seeks to repeal the legislation that
establishes carbon pricing by the end of the 2013-14 financial year. The bill
repeals the following Acts:
-
Clean Energy Act 2011 (CE Act);
-
Clean Energy (Charges—Customs) Act 2011;
-
Clean Energy (Charges—Excise) Act 2011;
-
Clean Energy (Unit Issue Charge—Auctions) Act 2011;
-
Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011;
and
-
Clean Energy (Unit Shortfall Charge—General) Act 2011.
1.2
The bill also:
-
makes consequential amendments to other legislation referring to
the CE Act and the carbon pricing mechanism;
-
provides for the collection of all carbon tax liabilities for
2012-13 and 2013-14 financial years;
-
introduces new powers for the Australian Competition and Consumer
Commission (ACCC) to take action to ensure price reductions relating to the
carbon tax repeal are passed on to consumers; and
-
makes arrangements for the finalisation and cessation of industry
assistance through the Jobs & Competitiveness Program, the Energy Security
Fund and the Steel Transformation Plan.
1.3
This bill is a re-introduction of the Clean Energy Legislation (Carbon
Tax Repeal) Bill 2013 which the committee considered in its First Report of
the 44th Parliament and subsequently in its Third Report of the 44th
Parliament.[1]
1.4
The bill is accompanied by a statement of compatibility
which provides detailed discussion as to how the bill engages the right to
privacy, property rights, the right to a fair trial and fair hearing, the right
to work and the right to an adequate standard of living.[2]
The statement of compatibility concludes that:
The Carbon Tax Repeal Bills are compatible with human rights
because the only potential limitations on human rights that the Carbon Tax
Repeal Bills impose relate to the right to privacy and criminal process rights
and they are reasonable, necessary and proportionate in achieving the Bills
legitimate policy objectives of repealing the carbon tax and making appropriate
transitional provisions for that purpose.[3]
1.5
The committee considers that the bill does not appear to give
rise to human rights concerns.
1.6
However, in its First Report of the 44th Parliament the committee
noted the detailed analysis of the compatibility of new civil penalty
provisions inserted into the Competition and Consumer Act 2010 by
Schedule 2 of the bill. The committee was pleased to note that certain minimum
guarantees applicable to criminal proceedings are protected, but expressed
concern that the application of a civil standard of proof in such proceedings
to determine an individual's liability for such penalties may not meet the
requirements of the right to be presumed innocent.
1.7
The statement of compatibility notes that in regards to the use of the
civil standard of proof in civil penalty proceedings that the non-application of
the criminal standard of proof:
is compatible with Article 14(2) because the pecuniary
penalty provisions have a long and well-litigated history, and it has not been
shown that the failure to apply the criminal standard of proof has resulted in
injustice. Indeed, the courts have on numerous occasions indicated that the
gravity of the allegations being tested in the court will be taken into
account, and that the graver the allegation, the greater the strictness of
proof that will be required. In particular, more than just ‘inexact proofs,
indefinite testimony or indirection references’ will be required (see, for
example, Australian Competition and Consumer Commission v TF Woolam & Sons
Pty Ltd (2011) 196 FCR 212 at [8]).[4]
1.8
While the committee notes these comments, it remains concerned that the
application of the civil standard of proof in relation to civil penalties that
are 'criminal' for the purposes of human rights law may not be compatible with
the right to be presumed innocent in article 14(2) of the International
Covenant on Civil and Political Rights (ICCPR).
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