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Underwater Cultural Heritage Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

                                                

SENATE

 

 

 

UNDERWATER CULTURAL HERITAGE BILL 2018          

UNDERWATER CULTURAL HERITAGE (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2018

 

 

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 6 of 2018 , dated 20 June 2018.

 

(Circulated by authority of the Assistant Minister for the Environment,

the Honourable Melissa Price MP)



 

UNDERWATER CULTURAL HERITAGE BILL 2018

UNDERWATER CULTURAL HERITAGE (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2018

The purpose of this addendum is to provide additional material to the Explanatory Memorandum to the Underwater Cultural Heritage Bill 2018 (the Bill ) and the Underwater Cultural Heritage (Consequential and Transitional Provisions) Bill 2018.

Key concepts - Strict liability

The inclusion of strict liability for the offences in the Bill , which is detailed in the table below, is consistent with the principles outlined in the Attorney-General’s Department’s ‘ Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ’, because:

·          The offences are not punishable by imprisonment, and the offences are punishable by a fine of up to 60 penalty units for an individual, or 300 penalty units for a body corporate. This means that persons who contravene a strict liability offence provision of the Bill, once enacted, will not be subject to unduly harsh or unfair penalties.

·          The punishment of contraventions through the application of strict liability offences will enhance the effectiveness of the compliance and enforcement regime established by the Bill and deter prohibited conduct by providing a cost effective option for regulating non-compliance.

·          There are legitimate grounds for penalising non-compliance with a regulatory scheme when the person should be, or is, aware of their obligations under that scheme. In practice, the Bill regulates a specific community, which includes scuba divers; private persons in legal possession of shipwreck relics; dealers in antiques or second hand goods; numismatists and companies involved with commercial marine activities. Due to their exposure to the regulation of protected underwater cultural heritage, these individuals and companies could reasonably identify whether their conduct would constitute an offence.

·          Clause 44 of the Bill allows for infringement notices to be issued for contraventions of the strict liability provisions of the Bill to help ensure that individuals are not punished disproportionately to the seriousness of an offence, and provide an alternative where a criminal conviction may have significant impact on their career or business. 

The defence of mistake of fact is available for strict liability offences (sections 6.1 and 9.2 of the Criminal Code) and the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code). 

UCH Bill Clause

   Justification for applying strict liability

Subclause27(6) - Failure to notify Minister of transfer of permit

·       A permit places the person on notice to guard against the possibility of any contravention. Permits will contain information on statutory requirements and impose conditions that must be met.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 28(3) - Breach of permit condition

·       A permit places the person on notice to guard against the possibility of any contravention. Permits will contain information on statutory requirements and impose conditions that must be met.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 29(5) - Prohibited conduct within protected zone without a permit

·       Strict control over incursions into protected zones by vessels and persons is necessary to ensure the integrity of the regulatory regime and protection of underwater cultural heritage.  Protected zones may prohibit entry without a permit and this fact is clearly communicated on hydrographic charts used for marine navigation in Australia. There are also public safety concerns as some protected zones contain unexploded ordinance.

·       The existence of protected zones has been made aware to both the general public and specific stakeholders through the application of the existing Historic Shipwrecks Act 1976 ( Shipwrecks Act ), so there is a reasonable expectation that persons operating in the marine environment should have knowledge of these regulations.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 30(5) - Conduct with an adverse impact on protected UCH without a permit

·       The control of adverse impacts by vessels and persons is necessary to ensure the integrity of the regulatory regime and protection of underwater cultural heritage. The type and severity of impacts can vary greatly and could involve low level but cumulative impacts that may be ignored by the public. Therefore, the ability to enforce the requirement in a simple manner will enhance regulatory effectiveness.

·       The principle of enjoying but not damaging, destroying or interfering with underwater cultural heritage has been widely communicated to both the general public and specific stakeholders through the application of the existing Shipwrecks Act, so there is a reasonable expectation that persons interacting with underwater cultural heritage should have knowledge of its regulation.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 31(5) - Possession of protected UCH without a permit

·       The offence of illegal possession of shipwrecks has been widely communicated to both the general public and specific stakeholders through the application of the existing Shipwrecks Act, so there is a reasonable expectation that persons interacting with underwater cultural heritage should have knowledge of this regulation.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 32(4) - Supply and offers to supply protected UCH without a permit

·        Regulatory control over the movement and location of protected underwater cultural heritage is necessary to ensure the integrity of the regulatory regime and protection of underwater cultural heritage. The severity of this statutory requirement is low and may be ignored by the public. Therefore, the ability to enforce the requirement in a simple manner will enhance regulatory effectiveness.

·       This regulation has been widely communicated to both the general public and specific stakeholders through the application of the existing Shipwrecks Act, so there is a reasonable expectation that persons interacting with underwater cultural heritage should have knowledge of this regulation.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 33(4) - Advertising to sell UCH without including permit number

·       A permit places a person on notice to guard against the possibility of any contravention.

·        The punishment of the offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring this conduct.  The severity of this statutory requirement is low and may tend to be ignored by the public. Therefore, the ability to enforce the requirement in a simple manner will enhance regulatory effectiveness.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 34(4) - Importing protected UCH without a permit

·       It is a well-established practice that the transfer of cultural heritage objects between countries is subject to regulations, conventions, restrictions and importation requirements.  It is therefore reasonable to expect that persons wishing to export and import cultural objects should have or seek knowledge about its regulation and be aware of the penalties for non-compliance.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 35(4) - Exporting UCH without a permit

·       It is a well-established practice that the transfer of cultural heritage objects between countries is subject to regulations, conventions, restrictions and importation requirements.  It is therefore reasonable to expect that persons wishing to export and import cultural objects should have or seek knowledge about its regulation and be aware of the penalties for non-compliance.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 36(4) - Importing UCH of a foreign country without a permit

·       It is a well-established practice that the transfer of cultural heritage objects between countries is subject to regulations, conventions, restrictions and importation requirements.  It is therefore reasonable to expect that persons wishing to export and import cultural objects should have or seek knowledge about its regulation and be aware of the penalties for non-compliance.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 37(5) - Failing to produce a permit 

·       A permit places a person on notice to guard against the possibility of any contravention. Permits will contain information on statutory requirements and impose conditions that must be met.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause 38(6) - Failure to respond to a notice from Minister

·       The failure of a person to respond to a notice is a pre-condition of the offence.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Subclause  39(7) - Failure to comply with Ministerial direction

·       The failure of a person to comply with directions in the notice is a pre-condition of the offence.

·       The penalty does not include imprisonment and the fine does not exceed 60 penalty units for an individual.

Criteria relating to Heritage significance - Part 2, Division 3, clause 22

Clause 22 of the Bill provides for the criteria relating to the assessment of heritage significance is included in the Underwater Cultural Heritage Rules (the Rules ). This is because of the subjective nature of heritage values assessment and its connection with evolving cultural attitudes in the community, and the need to provide flexibility for amendments to the criteria to be made if required.

The degree to which the community places value on particular heritage fluctuates over time. These changes in community attitudes can necessitate changes to the detailed heritage assessment guidance that in turn may also impact the effectiveness of the criteria, which may require modification. 

Similar to the heritage criteria, the purpose of providing for the Rules to guide the granting or varying permits is to allow more detailed guidance to be provided that deals effectively with the varying circumstances of permit applications.  Like the assessment of heritage values, there is a degree of subjectivity in the decisions, such as a decision about what constitutes an adverse impact in a particular case.  

Including the heritage assessment criteria and permit guidance in the Rules provide flexibility to revise them to reflect policy needs.  For example, it may be appropriate to amend the criteria or guidance from time to time to align with Commonwealth, State or Territory planning and heritage policies or changing environmental conditions. This is especially important where underwater cultural heritage regulated by the Bill is located in areas that are solely within the jurisdiction of State or Territory planning processes.  

Additionally, the Rules which will contain the heritage assessment criteria and the specification of matters relating to the granting and variation of permits will be subject and would be disallowable under the Legislation Act 2003 (the Legislation Act ). As such, the Rules, including any amendments, will be subject to public and Parliamentary scrutiny, including scrutiny by the Senate Standing Committee on Regulations and Ordinances. Consequently, there will be sufficient political and practical oversight of the heritage criteria and matters relating to permits. 

Notification of discovery of protected underwater cultural heritage - Part 3, Division 2, clause 40

The requirement to report the discovery of shipwrecks or other under types of underwater cultural heritage is an essential component of the regulatory regime established by the Bill. The obligation to report the discovery of articles of underwater cultural heritage in clause 40 of the Bill helps persons recognise that in-situ cultural heritage in the marine environment has the potential to be protected underwater cultural heritage. Without the obligation to report, discoveries of underwater cultural heritage may not be reported and underwater cultural heritage could be subject to adverse impact.

In practice, a limited community of people with technical expertise in diving or marine survey are likely to discover and report discovery of in-situ cultural material in the marine environment. Generally, these individuals and companies have sufficient training and education to identify cultural heritage. In shallower waters, people who find underwater cultural heritage, such as a wrecked vessel or aircraft, would be able to recognise that it is of an archaeological character based on the level of deterioration or the extent that it has become part of the marine environment, for instance, the amount of coral cover and deposition of sand.  In other cases, the underwater cultural heritage may be detected as anomalies by electronic remote sensing devices. A person in this case may not be aware of the specific nature of the material but would have a clear understanding that it is cultural in nature and should be reported.  This is the case with commercial marine surveying and study where the report of the discovery is provided through the supply of remote sensing data that can be subsequently interpreted.

The public will be provided with detailed guidelines to help identify discoveries that may require notification under the Bill. This guidance will be prepared and published following enactment of the Bill. Detailed public information will also continue to be provided via the Australian Government Department of the Environment and Energy website.

incorporation of documents - Part 5, clause 61

The protection of underwater cultural heritage is a matter of international concern. Consequently, there may be international guidelines and conventions that will need to be incorporated into the Rules in the future, such as the Annex rules to the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage.

It is practically necessary for there to be the option to incorporate material in the Rules as in force or existing from time to time. The types of documents that may be incorporated in the Rules would be authoritative conventions and international guidelines. Any changes to these documents would need to be incorporated from time to time to ensure regulated persons clearly understand their obligations under the Rules, and that the Rules are consistent with current international law or international best practice. It is intended that any external material incorporated into the Rules will be made freely available. For this reason, the Bill must include a contrary intention to section 14(2) of the Legislation Act, in order for there to be sufficient flexibility to incorporate external material as in force or existing from time to time into the Rules if necessary.

As the Rules, which will incorporate the external documents, will be a disallowable instrument, there will be appropriate opportunities for the Parliament to scrutinise the substance of incorporated documents and the manner of their incorporation.  Additionally, under section 41 of the Legislation Act, a House of the Parliament may, at any time while the rules are subject to disallowance, require any document incorporated by reference in the Rules to be made available for inspection by that House. Accordingly, there will be an appropriate level of Parliamentary oversight and scrutiny of any documents incorporated in the Rules in future.