Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Export Legislation Amendment (Live-stock) Bill 2018

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2016-2017-2018

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

EXPORT LEGISLATION AMENDMENT (LIVE-STOCK) BILL 2018

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture and Water Resources,

the Hon. David Littleproud MP)

 

 





 

EXPORT LEGISLATION AMENDMENT (LIVE-STOCK) BILL 2018

 

GENERAL OUTLINE

The Export Legislation Amendment (Live-Stock) Bill 2018 (the Bill) will amend the Australian Meat and Live-stock Industry Act 1997 (AMLI Act) and the

Export Control Act 1982 (EC Act) to ensure the penalties and sanctions available are sufficiently high to provide a level of deterrence and punishment necessary to protect animals carried on live-stock export voyages. 

The AMLI Act and the EC Act currently provide the primary means for the Australian Government to regulate the export of agricultural goods from Australian territory. They also provide the basis for achieving specific animal welfare outcomes for live-stock exports.

Concerns about the behaviour of some exporters engaged in live-stock exports, prompted the Government to re-examine the compliance and enforcement arrangements in the existing legislation.

Through this Bill, the Australian Government is seeking to strengthen the offences and penalties for individuals and companies who ignore live-stock export standards and requirements and engage in conduct that poses a risk to trade.

The measures in the Bill will ensure that the criminal and civil penalties reflect the seriousness of failing to comply with requirements of live-stock export legislation and provide a strong deterrent to non-compliant behaviour. This will assist in driving a positive cultural change in the live-stock export sector. These penalties are also intended to meet community expectations by allowing the courts to impose significant penalties where there has been a serious breach of law.

The Bill will enable the Australian Government to take a proportionate and effective approach to regulating the export of live-stock from Australia. The amendments will protect the rights of those who do comply by providing a greater ability to deter, and if necessary punish those whose conduct poses a risk to the industry.

The Bill contains one Schedule divided into three parts.

Part 1 of Schedule 1 will amend the AMLI Act to:

·          provide definitions for key terms that are used in the amended clauses;

·          provide increased criminal penalties and new civil penalty provisions relating to the export of live-stock;

·          add new civil penalty provisions and offences for exporting live-stock without a live-stock export licence and contravening a condition of a live-stock export licence in aggravated circumstances where the person intends to obtain a commercial advantage or there are economic consequences for Australia;

·          allow infringement notices to be issued in relation to the strict liability offence of contravening a condition of a live-stock export licence;

·          make it a civil penalty and an offence for an executive officer of a body corporate to fail to take reasonable steps to prevent a contravention of certain provisions by the body corporate;

·          allow for the existing search and seizure and other enforcement provisions in Division 4 of Part 2 of the AMLI Act to apply for the purpose of investigating whether any new civil penalty provision has been contravened; and

·          allow for a relevant court to make an adverse publicity order in relation to a person who has contravened a criminal offence or a civil penalty provision in Part 1 of the AMLI Act.

Part 2 of Schedule 2 will amend the EC Act to:

·          provide definitions for key terms that are used in the amended clauses;

·          make it a civil penalty, an offence and a strict liability offence to obstruct or hinder an accredited veterinarian or authorised officer carrying out export activities as part of an approved export program;

·          make it a civil penalty and an offence to dishonestly influence a person performing functions or duties, or exercising powers, under the EC Act;

·          make it a civil penalty and an offence for an executive officer of a body corporate to fail to take reasonable steps to prevent a contravention of certain provisions by the body corporate;

·          allow for the existing search and seizure and other enforcement provisions in Part III of the EC Act to apply for the purpose of investigating whether any new civil penalty provision has been contravened; and

·          allow for a relevant court to make an adverse publicity order in relation to a person who has contravened a criminal offence or a civil penalty provision of the EC Act.  

Part 3 of Schedule 1 of the Bill will deal with application provisions to provide when the amendments to the AMLI Act and EC Act apply in relation to acts or omissions occurring after commencement.

FINANCIAL IMPACT STATEMENT

The Bill will have no financial impact on the Australian Government Budget.

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Export Legislation Amendment (Live-stock) Bill 2018

The Bill is compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The purpose of the Bill is to allow for new civil penalties and criminal offences, and clarification of existing offences, under the Australian Meat and Live-stock Industry Act 1997 (AMLI Act) and the Export Control Act 1982 (EC Act).

In relation to the AMLI Act, the Bill will:

·          increase the criminal penalty and add a civil penalty provision for the offences of exporting live-stock without a live-stock export licence and contravening a condition of a live-stock export licence;

·          add an offence of strict liability for the offence of contravening a condition of a live-stock export licence;

·          add new civil penalty provisions and offences for exporting live-stock without a live-stock export licence and contravening a condition of a live-stock export licence in aggravated circumstances where the person intends to obtain a commercial advantage or there are economic consequences for Australia;

·          create a civil penalty and an offence in certain circumstances for an executive officer of a body corporate to fail to take all reasonable steps to prevent a contravention of certain provisions by the body corporate; and

·          enable a relevant court to make an adverse publicity order in relation to a person who has been ordered to pay a penalty for a contravention of, or has been found guilty of an offence against, a provision in Part 1 of the AMLI Act.

In relation to the EC Act, the Bill will:

·          make it a civil penalty, criminal offence and a strict liability offence to obstruct or hinder an accredited veterinarian or authorised officer carrying out export activities as part of an approved export program;

·          create a civil penalty and an offence to dishonestly influence a person performing functions or duties, or exercising powers, under the EC Act;

·          create a civil penalty and an offence in certain circumstances for an executive officer of a body corporate to fail to take all reasonable steps to prevent a contravention of certain provisions by the body corporate; and

·          enable a relevant court to make an adverse publicity order in relation to a person who has been ordered to pay a penalty for a contravention of, or has been found guilty of an offence against, a provision of the EC Act.

List of human rights

The Bill will engage, or have the potential to engage, the following rights under the International Covenant on Civil and Political Rights (ICCPR):

·          Article 14 of the ICCPR - Criminal process rights, including the right to the presumption of innocence, and the right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted; and

·          Article 17 of the ICCPR - Right to protection from arbitrary interference with privacy.

Assessment of compatibility with human rights

Criminal process rights (Article 14 of the ICCPR)

Article 14 of the ICCPR requires that, in the determination of criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Various other rights are provided for persons charged with criminal offences.

Civil penalties

Nature of penalties

Prescribing conduct that is subject to a civil penalty, and applying the civil penalty provisions of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act), could engage criminal process rights if the imposition of civil penalties is classified as ‘criminal’ under international human rights law.

Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014), which is published by the Parliamentary Joint Committee on Human Rights, states that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law.

When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a ‘criminal’ penalty for the purposes of the ICCPR. Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

The Bill seeks to add a number of civil penalty provisions to the AMLI Act and EC Act, which will be classified as civil penalties under domestic law. The following items in the Bill will add civil penalty provisions to the AMLI Act:

·          item 23 (subclauses 54A(2), 54B(3), 54C(3), 54D(3), 54E(3) and 54F(3)); and

·          item 24 (subclauses 56E(1) and 56E(2)).

The following amendments in the Bill will add a civil penalty provision to the EC Act:

·          item 31 (subclauses 9K(3) and 9KA(2)); and

·          item 46 (subclause 13C(1)).

The purpose of adding civil penalty provisions under the AMLI Act and the EC Act is to encourage compliance with provisions relating to live-stock export licences, and deter conduct such as dishonestly influencing a person performing functions or duties or exercising powers under either Act, or obstructing or hindering an accredited veterinarian or authorised officer carrying out activities under the EC Act. The civil penalty provisions will also provide an enforcement tool to take appropriate action against people who contravene a specified provision of the AMLI Act or the EC Act. The applicable penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may have significant and lasting negative consequences for Australia’s economy and trading relationships, as well as people who produce, prepare and export goods. The Bill includes civil penalties for provisions which are regulatory in nature, and where a pecuniary penalty is an appropriate remedy for non-compliance.

The proposed civil penalty provisions do not seek to impose criminal liability and will not lead to the creation of a criminal record. The penalties will only apply to persons, exporters and export-related businesses involved in the export of goods from Australian territory, specifically, live-stock exporters, rather than to the public in general. Those persons will reasonably be expected to be aware of their obligations under the proposed legislation, and will have voluntarily sought the approval of the Commonwealth to engage in an activity that is regulated under very clear conditions. Further, the imposition of civil penalties is not dependent on a finding of guilt. These factors suggest that the proposed civil penalty provisions are civil rather than criminal.

The proposed civil penalties will range from a maximum of 960 penalty units through to a maximum of 10,000 penalty units for individuals. None of the proposed civil penalty provisions will carry a penalty of imprisonment, and so would not be considered criminal for the purposes of human rights law.

For bodies corporate, the civil penalty for the aggravated civil penalty provisions relating to exporting live-stock without a live-stock export licence and contravening a condition of a live-stock export licence will be calculated in accordance with the proposed formula in item 23 (clause 54G). The maximum civil penalty will not be more than the greatest of 20,000 penalty units, three times the value of the benefit obtained by the body corporate, or 10% of the annual turnover of the body corporate in the relevant 12 month period.

The proposed formula in item 23 (clause 54G) takes into account the regulatory context of exporting live-stock. Contravention of a civil penalty provision relating to exporting live-stock without a live-stock export licence or conditions on a live-stock export licence represents a risk to Australia’s export markets, which were worth $53 billion in 2016-17. It may impact the confidence of trading partners in the Government’s regulation of exported goods, particularly live-stock, and adversely impact market access for all types of goods exported from Australia. It may also have significant adverse health or biosecurity consequences in overseas markets, therefore impacting Australia’s international reputation as a reliable source of safe, high-quality goods. Australia exported more than $1.4 billion worth of live-stock in 2016-17. Bodies corporate in those industries stand to turn a significant profit from the export of live-stock to lucrative overseas markets. A body corporate may view the payment of a low civil penalty as an ordinary cost of business unless the civil penalty is set at a level to deter this conduct. The formula is designed to respond to the potential commercial gain that a body corporate may obtain by exporting live-stock without a live-stock export licence or contravening a condition of a live-stock export licence in contravention of a civil penalty provision of the Bill, and takes into account the relative benefit to or turnover of the body corporate.

The proposed civil penalty provisions at amendment 24 (clause 56E of the AMLI Act) and amendment 46 (clause 13C of the EC Act) only apply to individuals. The proposed civil penalty provisions at amendment 23 (clauses 54A and 54D of the AMLI Act) and amendment 31 (clauses 9K and 9KA of the EC Act) may apply to a body corporate. It is proposed that, for these provisions, the standard provisions in Part 4 of the Regulatory Powers Act will apply under amendment 46 (clause 13A of the EC Act). The proposed civil penalty provisions will attract the corporate multiplier found in subsection 82(5) of the Regulatory Powers Act. Subsection 82(5) of the Regulatory Powers Act provides that if the person is a body corporate, the pecuniary penalty must not be more than five times the pecuniary penalty specified for the civil penalty provision. This means that applicable civil pecuniary penalty for bodies corporate under these amendments will be a maximum of 4,800 penalty units.

The proposed amendment 24 (clause 56E of the AMLI Act) and amendment 46 (clause 13C of the EC Act) will create civil penalty provisions, subject to a pecuniary penalty of 10,000 penalty units (clause 56E of the AMLI Act) and 960 penalty units (clause 13C of the EC Act), for executive officers of bodies corporate where:

·          a body corporate contravenes a specified civil penalty provision; and

·          the officer knew that, or was reckless or negligent as to whether, the contravention would occur; and

·          the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·          the officer failed to take all reasonable steps to prevent the contravention.

The proposed amendments recognise the extra responsibility that executive officers will have in ensuring a body corporate engages in appropriate conduct, including their duty to take action to prevent contraventions of their obligations in the AMLI Act and the EC Act.

The civil pecuniary penalties for the proposed civil penalty provisions in the Bill have been set by reference to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, published by the Attorney-General’s Department (the Guide). The penalties reflect the seriousness of the contravening conduct and the risk that the conduct may pose to Australia’s trading reputation, the integrity of the export system, or animal life or health.

The proposed application of the standard provisions in Part 4 of the Regulatory Powers Act by amendment 24 (clause 56A of the AMLI Act) and amendment 46 (clause 13A of the EC Act) means that section 85 of the Regulatory Powers Act will apply to the proposed civil penalty provisions. Section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions; for example, they do not carry the possibility of imprisonment. As such, these civil penalties are not sufficiently severe that they could be considered to be criminal penalties for the purposes of Australia’s human rights obligations.

As the Bill triggers Part 4 of the Regulatory Powers Act, subsection 82(6) of the Regulatory Powers Act will apply to the proposed civil penalty provisions in the Bill. This subsection provides that in determining the pecuniary penalty, the court must take into account all relevant matters. This includes the nature and extent of the contravention, the nature and extent of any loss or damage, the circumstances of the contravention and whether the person has been found by a court to have engaged in any similar conduct.

The civil penalty amount is the maximum penalty that may be imposed in the most serious and egregious instances of non-compliance. In determining the penalty, the court must exercise its discretion and consider a range of factors, which makes it unlikely that the court would impose the maximum penalty in every instance. Civil courts are experienced in making civil penalty orders at levels within the maximum amount to reflect the individual circumstances of a case.

These factors suggest that the proposed civil penalty provisions in the Bill are civil rather than criminal in nature. Accordingly, the criminal process rights provided for by Articles 14 and 15 of the ICCPR are not engaged by the proposed civil penalty provisions in the Bill.

Overlap of criminal and civil penalties

The Bill seeks to add civil penalty provisions to the AMLI Act and the EC Act to complement new and existing criminal penalty provisions. Both civil and criminal proceedings will be available for a contravention of the following provisions of the AMLI Act:

·          item 23 (clauses 54A, 54B, 54C, 54D, 54E and 54F).

Both civil and criminal proceedings will be available for a contravention of the following provisions of the EC Act:

·          item 31 (clauses 9K and 9KA).

Sections 90 and 91 of the Regulatory Powers Act will apply to civil penalty proceedings brought under the AMLI Act or EC Act as a result of item 24 (clause 56A of the AMLI Act) and amendment 46 (clause 13A of the EC Act). These sections concern the relationship between criminal and civil penalty proceedings.

Section 90 of the Regulatory Powers Act clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in sanctioning contraventions of a triggering Act (i.e. an Act that seeks to apply the standard provisions of the Regulatory Powers Act), and ensures that criminal remedies are not precluded by earlier civil action.

Section 90 of the Regulatory Powers Act engages the process rights in Article 14 of the ICCPR, but does not limit those rights. Article 14(7) of the ICCPR provides that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. This prohibition on double jeopardy is a fundamental safeguard in the common law of Australia. It means that a person who has been convicted or acquitted of a criminal charge is not to be re-tried for the same or substantially the same offence.

As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of the production of documents, by an individual is not admissible in criminal proceedings against the individual if:

·          the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

·          the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

Section 91 of the Regulatory Powers Act ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings. Accordingly, that section engages, but does not limit, the criminal process rights in Article 14 of the ICCPR.

Infringement notices

Item 24 (clause 56B of the AMLI Act) seeks to apply the standard infringement notice provisions in Part 5 of the Regulatory Powers Act to the strict liability offence in item 23 (subclause 54D(2) of the AMLI Act). Accordingly, the enforcement framework for infringement notices issued under the AMLI Act will be provided for by Part 5 of the Regulatory Powers Act. Infringement notices will be able to be issued under the Regulatory Powers Act in relation to the strict liability offence in item 23 (subclause 54D(2) of the AMLI Act).

An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

The provision in item 23 (subclause 54D(2)) that will be subject to an infringement notice is a strict liability offence. If the person chooses not to pay the penalty amount in the infringement notice, they may be prosecuted for the offence. The right to a fair and public hearing provided for by Article 14(1) of the ICCPR is consequently engaged.

Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty, and notify them that, if they do so, that person may be prosecuted in a court for the alleged offence. As the person may elect to have the matter heard by a court, rather than pay the penalty, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited.

Article 14 of the ICCPR also provides for other criminal process rights, such as the right to be presumed innocent. It sets out the minimum guarantees in criminal proceedings, such as the right to be informed promptly of the charge, the right to freedom from self-incrimination and the right to be tried in person. These rights are not limited by the application of Part 5 of the Regulatory Powers Act to the AMLI Act. The minimum guarantees and the right to be presumed innocent will apply to proceedings relating to contraventions of the strict liability offence, except to the extent that they are expressly limited by law.

Right to presumption of innocence (Article 14(2) of the ICCPR)

Article 14 of the ICCPR provides for the presumption of innocence and sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The right to presumption of innocence is also a fundamental common law principle in Australia.

Strict liability offences

Section 5.6 of the Criminal Code creates a rebuttable presumption that, to establish guilt, fault must be proven for each physical element of a Commonwealth offence. If it is proposed that no fault element apply to the offence or an element of the offence, the offence or element must be expressly identified as one of strict liability (section 6.1 of the Criminal Code ) or absolute liability (section 6.2 of the Criminal Code ).

When strict liability applies to an offence or an element of an offence, the prosecution is only required to prove the physical elements of the offence (or element of the offence) in order for the defendant to be found guilty. That is, they are not required to prove fault elements in order for the defendant to be found guilty.

Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault. It is important to note that the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

Strict liability offences will not necessarily be inconsistent with the presumption of innocence, provided that the removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. The strict liability offence in the AMLI Act (item 23 (subclause 54D(2)) is appropriate because persons voluntarily engaged in the export of live-stock should know their legal obligations in relation to their live-stock export conditions before commencing export activities. The strict liability offence in the EC Act (item 31 (subclause 9K(2)) is appropriate because a person, such as an exporter, should be aware of their obligation to allow an accredited veterinarian or authorised officer to undertake activities in an approved export program without obstruction or hindrance. Ultimately, whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence. Courts are well-experienced in considering the individual circumstances of a case.

The application of strict liability in the Bill, and the offence to which it relates, have been developed in line with the Guide.

Item 23 (subclause 54D(2) in the AMLI Act) and item 31 (subclause 9K(2) in the EC Act) seek to create offences in which strict liability is applied to all elements of the offence.

The Guide states that applying strict liability to all physical elements is generally only considered appropriate where all of the following apply:

·          the offence is not punishable by imprisonment;

·          the offence is punishable by a fine of up to 60 penalty units for an individual and 300 penalty units for a body corporate;

·          the punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring certain conduct; and

·          there are legitimate grounds for penalising persons lacking fault (for example, because he or she will be placed on notice to guard against the possibility of any contravention).

The proposed strict liability offence in item 23 (subclause 54D(2) in the AMLI Act) will relate to contravention of a condition on a live-stock export licence. Strict liability will be necessary to ensure the effectiveness and enforceability of the regulatory system in regulating export activities that contravene a condition of a live-stock export licence. The proposed strict liability offence in item 31 (subclause 9K(2) in the EC Act) will relate to obstructing or hindering an accredited veterinarian or authorised officer in undertaking activities in an approved export program. Ensuring that an accredited veterinarian or authorised officer is not obstructed or hindered from undertaking activities in an approved export program is integral to the regulatory oversight of live-stock export activities.  

Removing the requirement to prove fault in item 23 (subclause 54D(2)) will provide a strong deterrent to people seeking to contravene a condition of their live-stock export licence. The existence of the offence in item 23 (subclause 54D(2)) is likely to place relevant persons involved in export activities on notice to guard against the possibility of any contravention of a condition of their live-stock export licence.

Similarly, removing the requirement to prove fault in item 31 (subclause 9K(2)) will provide a strong deterrent to people seeking to obstruct or hinder an accredited veterinarian or authorised officer carrying out activities under an approved export program, and will put people on notice not to engage in this conduct in contravention of item 31 (subclause 9K(2)).

The proposed strict liability offences are not punishable by imprisonment, and are not punishable by a criminal penalty exceeding 60 penalty units for an individual or 300 penalty units for a body corporate. Item 23 (subclause 54D(2)) of the Bill will be subject to a criminal pecuniary penalty of 60 penalty units for an individual and 300 penalty units for a body corporate. Item 31 (subclause 9K(2)) will be subject to a criminal pecuniary penalty of 50 penalty units for an individual and 250 penalty units for a body corporate.

Summary

The Bill is compatible with the right to the presumption of innocence in Article 14(2) of the ICCPR because, to the extent that the Bill may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Right to protection from arbitrary interference with privacy (Article 17 of the ICCPR)

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence, and protects a person’s honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances. While the United Nations Human Rights Committee has not defined “privacy”, the term is generally understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

Adverse publicity orders

The proposed item 24 (clause 56F in the AMLI Act) and item 46 (clause 13D in the EC Act) seek to allow a court to make an adverse publicity order in relation to a person who has been ordered to pay a penalty for a contravention of a provision in Part 1 of the AMLI Act or any provision of the EC Act, or has been found guilty of an offence against a provision in Part 1 of the AMLI Act or any provision of the EC Act. To the extent that the powers in item 24 (clause 56F in the AMLI Act) and item 46 (clause 13D in the EC Act) limit the rights protected under Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and proportionate to the achievement of a legitimate objective.

These items pursue the legitimate objective of ensuring compliance with the requirements of the AMLI Act and EC Act by live-stock exporters.

Non-compliance with the requirements of the AMLI Act or EC Act leading to the commission of an offence or contravention of a civil penalty provision represents a risk to Australia’s live animal export market and other export markets more generally, which may have significant consequences for our export earnings. It may impact the confidence of trading partners in the Government’s regulation of live-stock and other exported goods, and adversely impact market access. It may also have significant adverse health or biosecurity consequences in overseas markets. The power to make an adverse publicity order is reasonable and necessary to ensure that persons who are potentially affected by the contravention are notified of or have access to information relating to the contravention.

A person who has committed an offence or contravened a civil penalty provision under the AMLI Act or EC Act has participated in the export regulatory system. Guidance from the Parliamentary Joint Committee on Human Rights indicates that whether a person has a reasonable expectation of privacy in the circumstances is relevant to the issue of determining whether or not a clause is permissible. A person who has been found guilty of an offence or been ordered to pay a pecuniary penalty under the AMLI Act or EC Act should be aware that they should not expect privacy in relation to that contravention, particularly where that contravention presents a risk to Australia’s export markets or to health or biosecurity in an overseas market.

There are restrictions on the use of the proposed power to make an adverse publicity order to ensure that the power is proportionate to achieving the objective of ensuring compliance with the requirements of the AMLI Act or EC Act. The power to make an adverse publicity order is limited to a court, which has the relevant expertise to make the order. An adverse publicity order can only be made against a person, such as a live-stock export licence holder, who has been ordered to pay a penalty for a contravention of a provision of the relevant Act or has been found guilty of an offence under the relevant Act. It cannot be made against a member of the general public. There are also restrictions on the information that may be required to be disclosed or published under an adverse publicity order, which ensures that only information relevant to the contravention is required to be disclosed or published and there are adequate safeguards in place around the use of the power.

Summary

The Bill is compatible with the right to protection from arbitrary interference with privacy under Article 17 of the ICCPR because, to the extent that it may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Conclusion

The Bill is compatible with human rights because, to the extent that the Bill may limit human rights, those limitations are reasonable, necessary and proportionate.

 

(Circulated by authority of the Minister for Agriculture and Water Resources,

the Hon. David Littleproud MP)


ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

Term, acronym or abbreviation

Meaning

AMLI Act

Australian Meat and Live-stock Industry Act 1997.

the Bill

the Export Legislation Amendment (Live-stock) Bill 2018.

Criminal Code

Schedule 1 to the Criminal Code Act 1995.

EC Act

Export Control Act 1982 .

the Guide

the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General’s Department.

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014.

the Secretary

the Secretary of the Department administered by the Minister who will administer the relevant provisions that will be created by this Bill if the Bill passes the Parliament and receives the Royal Assent.

 



 

NOTES ON CLAUSES

Clause 1              Short Title

Clause 1 will provide that the short title of the Bill is the Export Legislation Amendment (Live-stock) Act 2018 .

Clause 2              Commencement

Clause 2 will provide for the commencement of each provision in the Bill, as set out in the table.

Subclause 2(1) will provide that each provision of the Bill will commence the day after the Royal Assent.

Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Bill, and information may be inserted in this column, or information in it may be edited, in any published version of the Bill.

Clause 3              Schedules

Clause 3 will provide that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.



 

Schedule 1 - Amendments

Part 1—Amendment of the Australian Meat and Live-stock Industry Act 1997

Australian Meat and Live-stock Industry Act 1997

Item 1             Subsection 4(2)

Item 1 will repeal subsection 4(2) of the AMLI Act, and will insert subclause 4(2) to provide that the Crown will not be made liable to be prosecuted for an offence, subject to a civil proceeding for a civil penalty order under Part 4 of the Regulatory Powers Act or given an infringement notice under Part 5 of the Regulatory Powers Act.

This will mean that the Commonwealth and State and Territory governments will be required to comply with the provisions of the AMLI Act, but they cannot be prosecuted for an offence, be subject to a civil penalty, or be given an infringement notice under the Act.

Item 2             Section 7

Item 2 will amend section 7 of the AMLI Act to insert two new definitions.

It will insert a definition of civil penalty provision to provide that the term will have the same meaning as in the Regulatory Powers Act.         

It will also insert a definition of economic consequences for Australia . Economic consequences includes substantial damage to Australia’s trading reputation and/or a restriction on or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia. This expression is relevant to the proposed offences in clauses 54C and 54F.

Item 3             Section 7 (definition of evidential material)

Item 3 will insert the phrase “or a contravention of a civil penalty provision” after the word “offence”. This amendment will enable the existing search and seizure and other enforcement provisions in Division 4 of Part 2 of the AMLI Act to apply for the purpose of investigating whether any of the new civil penalty provisions have been contravened.

Item 4             Section 7

Item 4 will insert a definition of executive officer to provide that an executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body. This amendment will clarify that the meaning of executive officer includes both executive and non-executive directors. This will have relevance to new clauses 56D and 56E, which will deal with the liability of executive officers.

Item 4 will also insert a definition of Regulatory Powers Act . This definition will provide that ‘Regulatory Powers Act’ means the Regulatory Powers (Standard Provisions) Act 2014 .

Item 4 will also insert a definition of relevant court . This definition will provide that ‘relevant court’ means the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the AMLI Act.

Item 5             Paragraph 34(2)(b)

Item 5 will insert “or a contravention of a civil penalty provision of this Part,” after “this Part”. This amendment will enable the existing provisions dealing with searches to monitor compliance with the AMLI Act to apply for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 6             Section 35 (heading)

Item 6 will repeal the heading to section 35 of the AMLI Act and substitute “ Entering and searching premises and seizing things” . This amendment will reflect the fact that searches and seizure under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 7             Subsection 35(1)

Item 7 will insert “or a contravention of a civil penalty provision of this Part” after the words “this Part”. This amendment will reflect the fact that searches and seizures under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 8             Subsection 35(2)

Item 8 will repeal subsection 35(2) of the AMLI Act and substitute the following:

(2)        If, in the course of searching, under a warrant issued under section 37, for a particular thing in relation to a particular offence or contravention of a civil penalty provision, an authorised officer finds a thing that the officer believes, on reasonable grounds, to be:

            (a)        a thing that may be evidence of the commission of the offence or contravention, although not the thing stated in the warrant; or

            (b)        a thing that may be evidence of the commission of another offence against this Part or a contravention of another civil penalty provision of this Part;

and the officer believes, on reasonable grounds, that it is necessary to seize the thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or contravention, or the other offence or other contravention, the warrant is taken to authorise the officer to seize the thing.

This amendment will reflect the fact that searches and seizure under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 9             Section 37 (heading)

Item 9 will amend the heading to section 37 of the AMLI Act to replace the words “Offence-related” with “Investigation”. This amendment will reflect the fact that warrants under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 10           Subsection 37(2)

Item 10 will amend subsection 37(2) of the AMLI Act to add the words “or a contravention of a civil penalty provision of this Part”. This amendment will reflect the fact that warrants under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 11           Paragraph 37(4)(a)

Item 11 will amend paragraph 37(4)(a) of the AMLI Act by inserting the words “or contravention” after “offence”. This amendment will reflect the fact that warrants under the AMLI Act will be used for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 12           Section 45 (heading)

Item 12 will omit the phrase “Court of summary jurisdiction” from the heading to section 45, and substitute it with “Relevant court”. This amendment is required to align the heading with the proposed definition of relevant court in section 7 of the AMLI Act.

Item 13           Subsection 45(1)

Item 13 will omit the phrase “court of summary jurisdiction” from subsection 45(1), and substitute it with “relevant court”. This amendment is required to align with the proposed definition of relevant court in section 7 of the AMLI Act.

Item 14           Paragraph 45(2)(a)

Item 14 will amend paragraph 45(2)(a) of the AMLI Act by inserting the words “or a civil penalty provision of this Part has been contravened” after the word “committed”. This amendment will reflect the fact that things seized under the AMLI Act may be kept for the purpose of investigating a possible contravention of a civil penalty provision as well as a criminal offence.

Item 15           Paragraph 45(2)(b)

Item 15 will repeal paragraph 45(2)(b) of the AMLI Act and substitute “to enable evidence of an offence, or a contravention of a civil penalty provision of this Part, to be secured for the purposes of a proceeding”. This amendment will reflect the fact that things seized under the AMLI Act may be secured for the purpose of a prosecution of a possible contravention of a civil penalty provision as well as a criminal offence.

Item 16           Subsection 52(4)

Item 16 will insert the phrase “or contravention of a civil penalty provision of this Part” after the phrase “against this Part” in subsection 52(4) of the AMLI Act. This will reflect the fact that the provision relating to nominees of the holders of export licences will be relevant to proceedings in relation to civil penalties as well as the prosecution of criminal offences.

Item 17           Subsection 53(4)

Item 17 will repeal subsection 53(4) of the AMLI Act and substitute the following provision:

            (4)        A certificate referred to in subsection (2) must not be received in evidence under that subsection in any proceedings for an offence against this Part, or a contravention of a civil penalty provision of this Part, unless the person charged with the offence, or alleged to have contravened the civil penalty provision, has been given:

            (a)        a copy of the certificate; and

            (b)        reasonable notice of the intention of the person who instituted the proceedings to produce the certificate as evidence in the proceedings.

This amendment will reflect the fact that certificates of analysis may be used in proceedings for a contravention of a civil penalty provision as well as the prosecution of a criminal offence.

Item 18           Subsection 53(5)

Item 18 will omit the phrase “the person charged” from subsection 53(5) of the AMLI Act and substitute it with the phrase “the person charged with the relevant offence, or alleged to have contravened the relevant civil penalty provision”. This amendment will reflect the fact that certificates of analysis may be used in proceedings for a contravention of a civil penalty provision as well as the prosecution of a criminal offence.

Item 19           Subsection 53(5)

Item 19 will omit the phrase “for the prosecution” from subsection 53(5) of the AMLI Act and substitute it with the phrase “for the person who instituted the proceedings”. This amendment will reflect the fact that certificates of analysis may be used in proceedings for a contravention of a civil penalty provision as well as the prosecution of a criminal offence.

Item 20           Section 54 (heading)

Item 20 will repeal the heading under section 54 of the AMLI Act and substitute it with “Meat must not be exported without meat export licence etc”. This will be an amendment to reflect the proposed split of section 54 of the AMLI Act into two provisions: one dealing with meat export licences and one dealing with live-stock export licences.

Item 21           Subsection 54(2)

Item 21 will repeal subsection 54(2) of the AMLI Act. Subsection 54(2) currently provides that a person who is not the holder of a live-stock export licence must not export live-stock from Australia. New offences and civil penalty provisions for live-stock export licences will be introduced under item 23.

Item 22           Subsection 54(3)

Item 22 will omit the phrase “an export licence” from subsection 54(3) and substitute it with “a meat export licence”. This will be an amendment to reflect the proposed split of section 54 of the AMLI Act into two provisions: one dealing with meat export licences and one dealing with live-stock export licences.

Item 23           After section 54

Item 23 will restructure the offence provisions for exporting live-stock without a live-stock export licence, and for contravening conditions of a live-stock export licence. Item 23 will also introduce new civil penalty provisions and aggravated offences for exporting live-stock without an export licence, or for contravening conditions of a live-stock export licence.

Subclause 54A(1) will replace the offence for exporting live-stock without a live-stock export licence previously under subsection 54(2) of the AMLI Act. It will provide that a person commits a fault-based offence if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence.

The penalty for a contravention of subclause 54A(1) will be “imprisonment for eight years or 480 penalty units, or both”. The corresponding fine for a contravention of subclause 54A(1) by a body corporate is 2,400 penalty units.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54A(2) will introduce a new civil penalty for exporting live-stock without a live-stock export licence. It will provide that a person is subject to a civil penalty if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence.

The penalty for a contravention of subclause 54A(2) will be 960 penalty units. The corresponding fine for a contravention of subclause 54A(2) by a body corporate is 4,800 penalty units.  

Item 23 will also insert clause 54B into the AMLI Act. Clause 54B will introduce an aggravated offence and civil penalty provision for exporting live-stock without a live-stock export licence, with an intention to obtain a commercial advantage.

This aggravated offence and civil penalty are intended to capture circumstances where a person exports live-stock from Australia without a live-stock export licence, with the intention of obtaining a commercial advantage, whether or not that commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain.

Subclause 54B(1) will provide that a person commits a fault-based offence if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence; and

·          the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the live-stock.

The proposed penalty is imprisonment for ten years or 2,000 penalty units, or both (if the offence is committed by an individual) and the amount under clause 54G if the offence is committed by a body corporate.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports. The high maximum penalty is justified because of the strong financial and commercial incentives to commit the offence, where the consequences of the commission of the offence are particularly damaging, and may impact Australia’s trading reputation.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54B(2) will provide for an alternative verdict against subclause 54B(1). If the prosecution is unable to prove beyond reasonable doubt that the person intended to obtain a commercial advantage over competitors or potential competitors, the person may still be found guilty of exporting live-stock without a live-stock export licence under subclause 54A(1).

Subclause 54B(3) will introduce a new civil penalty for exporting live-stock from Australia without a live-stock export licence, with the intention of obtaining a commercial advantage, whether or not that commercial advantage is realised. It provides that a person is liable to a civil penalty if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence; and

·          the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors , as a result of exporting the live-stock.

The civil penalty for a contravention of subclause 54B(3) will be 4,000 penalty units for an individual. The corresponding fine for a body corporate will be the amount that a court may impose under clause 54G.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 23 will also insert new clause 54C into the AMLI Act ( Exporting live-stock without live-stock export licence—economic consequences for Australia). New clause 54C will introduce an aggravated offence and civil penalty provision for exporting live-stock without a live-stock export licence, when the export of the live-stock causes, or has the potential to cause, economic consequences for Australia.

This aggravated offence and civil penalty are intended to capture circumstances where a person exports live-stock from Australia without a live-stock export licence, and the export of the live-stock causes, or has the potential to cause, economic consequences for Australia. The term economic consequences for Australia will be defined in section 7 of the AMLI Act in accordance with item 2 to include:

·          substantial damage to Australia’s trading reputation, and/or

·          a restriction on, or the closure of, access to one or more of the overseas markets for all goods or a kind of goods from Australia.

Subclause 54C(1) will provide that a person commits a fault-based offence if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence; and

·          the export of the live-stock causes, or has the potential to cause, economic consequences for Australia.

The penalty for a contravention of subclause 54C(1) will be “imprisonment for ten years or 2,000 penalty units, or both” when the offence is committed by an individual. The corresponding fine for a body corporate will be the amount that a court may impose under new clause 54G.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports. The high maximum penalty is justified because of the strong financial and commercial incentives to commit the offence, where the consequences of the commission of the offence are particularly damaging, and may impact Australia’s trading reputation.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54C(2) will provide for an alternative verdict against subclause 54C(1). If the prosecution is unable to prove beyond reasonable doubt that the export of the live-stock caused, or had the potential to cause, economic consequences for Australia, the person may still be found guilty of exporting live-stock without a live-stock export licence under subclause 54C(1).

Subclause 54C(3) will introduce a new civil penalty for exporting live-stock from Australia without a live-stock export licence when the export of the live-stock caused, or had the potential to cause, economic consequences for Australia. It provides that a person is liable to a civil penalty if:

·          the person exports live-stock from Australia; and

·          the person is not the holder of a live-stock export licence; and

·          the export of the live-stock causes, or has the potential to cause, economic consequences for Australia.

The civil penalty for a contravention of subclause 54C(3) will be 4,000 penalty units for an individual. The corresponding fine for a body corporate will be the amount that a court may impose under new clause 54G.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 23 will also insert clause 54D into the AMLI Act. Clause 54D will replace the offence for intentionally or recklessly exporting live-stock in contravention of the conditions of a live-stock export licence currently set out in subclause 54(3) of the AMLI Act. It will provide that the holder of a live-stock export licence will commit a fault-based offence, a strict liability offence or contravene a civil penalty provision if the holder contravenes a condition of the licence.

The proposed fault-based offence will be in subclause 54D(1) and will provide that the holder of a live-stock export licence commits an offence if the holder contravenes a condition of the licence either intentionally or being reckless as to the condition. The penalty for a contravention of subclause 54D(1) will be “imprisonment for eight years or 480 penalty units, or both” when the offence is committed by an individual. The corresponding fine for a contravention of subclause 54D(1) by a body corporate is 2,400 penalty units.  

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54D(2) will introduce a strict liability offence for contravening a condition of an export licence. The penalty for this offence will be 60 penalty units and is not punishable by imprisonment, which is consistent with the Guide.

This offence is a strict liability offence. This means that the prosecution is only required to prove the physical elements of the offence beyond reasonable doubt, and is not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code). The use of strict liability in this offence is appropriate because the offence will apply only to persons who choose to export live-stock, and those people can reasonably be expected to be aware of their duties and obligations under the law. Further, the persons to whom this offence will apply should be on notice to guard against any contravention of the provision, and there is a strong public interest in ensuring that conditions on live-stock export licences are complied with.

The purpose of this strict liability offence is to ensure that exporters of live-stock comply with the conditions of their live-stock export licence. Strict liability will be necessary to ensure the integrity of the regulatory system. In these circumstances, it is the conduct that needs to be regulated irrespective of the intention or knowledge of the person who engages in the conduct.

Subclause 54D(3) will introduce a new civil penalty provision for contravening a condition of a live-stock export licence. It will provide that the holder of a live-stock export licence is liable to a civil penalty if the holder contravenes a condition of the licence.

The penalty for a contravention of subclause 54D(3) will be 960 penalty units for an individual. The corresponding fine for a body corporate will be 4,800 penalty units.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 23 will also insert clause 54E into the AMLI Act. Clause 54E will introduce an aggravated offence and civil penalty provision for contravening a condition of a live-stock export licence, with an intention to obtain a commercial advantage. This aggravated offence and civil penalty provision are intended to capture circumstances where a person recklessly or intentionally contravenes a condition of a live-stock export licence, with the intention of obtaining a commercial advantage, whether or not that commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain.

Subclause 54E(1) will provide that the holder of a live-stock export licence commits a fault-based offence if:

·          the holder contravenes a condition of the licence either intentionally or being reckless as to the condition; and

·          the holder intends to obtain a commercial advantage over the person’s competitors, or potential competitors , as a result of contravening the condition.

The penalty for a contravention of subclause 54E(1) will be “imprisonment for ten years or 2,000 penalty units, or both” when the offence is committed by an individual. The corresponding fine for a body corporate will be the amount that a court may impose under new clause 54G.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports. The high maximum penalty is justified because of the strong financial and commercial incentives to commit the offence, where the consequences of the commission of the offence are particularly damaging, and may impact Australia’s trading reputation.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54E(2) will provide for an alternative verdict against subclause 54E(1). If the prosecution is unable to prove beyond reasonable doubt that the person intended to obtain a commercial advantage over competitors or potential competitor, the person may still be found guilty of exporting live-stock in contravention of the conditions of a live-stock export licence under subclause 54D(1).

Subclause 54E(3) will provide that the holder of a live-stock export licence is liable to a civil penalty if:

·          the holder contravenes a condition of the licence; and

·          the holder intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of contravening the condition.

The penalty for a contravention of subclause 54E(3) will be 4,000 penalty units for an individual. The corresponding fine for a body corporate will be the amount that a court may impose under new clause 54G.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 23 will also insert new clause 54F into the AMLI Act (Contravening conditions of live-stock licence—economic consequences for Australia). New clause 54F will introduce an aggravated offence and civil penalty provision for contravening conditions of a live-stock licence, when the contravention causes, or has the potential to cause, economic consequences for Australia.

This aggravated offence and civil penalty provision are intended to capture circumstances where the holder of a live-stock licence contravenes the conditions of their licence and this causes, or has the potential to cause, economic consequences for Australia. The term economic consequences for Australia will be defined in section 7 of the AMLI Act in accordance with item 2 to include:

  • substantial damage to Australia’s trading reputation, and/or
  • a restriction on, or the closure of, access to one or more of the overseas markets for all goods or a kind of goods from Australia.

Subclause 54F(1) will provide that the holder of a live-stock export licence commits an offence if:

·          the holder contravenes a condition of the licence either intentionally or being reckless as to the condition; and

·          the contravention of the condition causes, or has the potential to cause, economic consequences for Australia.

The penalty for a contravention of subclause 54F(1) will be “imprisonment for ten years or 2,000 penalty units, or both” when the offence is committed by an individual. The corresponding fine for a body corporate will be the amount that a court may impose under clause 54G.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports. The high maximum penalty is justified because of the strong financial and commercial incentives to commit the offence where the consequences of the commission of the offence are particularly damaging, and may impact Australia’s trading reputation.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 54F(2) will provide for an alternative verdict against subclause 54F(1). If the prosecution is unable to prove beyond reasonable doubt that the contravention of a condition of the live-stock export licence caused or had the potential to cause economic consequences for Australia, the person may still be found guilty of the basic offence of contravening the conditions of their export licence under subclause 54D(1).

Subclause 54F(3) will introduce a new civil penalty for contravening the conditions of a live-stock export licence, when the contravention caused, or had the potential to cause, economic consequences for Australia. It provides that the holder of a live-stock export licence is liable to a civil penalty if:

·          the holder contravenes a condition of the licence; and

·          the contravention of the condition causes, or has the potential to cause, economic consequences for Australia.

The civil penalty for a contravention of subclause 54F(3) will be 4,000 penalty units for an individual. The corresponding fine for a body corporate will be the amount that a court may impose under new clause 54G.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 23 will also insert a clause 54G into the AMLI Act. Clause 54G will establish a formula for calculating the criminal and civil pecuniary penalties that will apply to a body corporate that contravenes a provision of subclauses 54B(1) and (3); subclauses 54C(1) and (3); subclauses 54E(1) and (3); or subclauses 54F(1) and (3).

The formula is designed to act as a significant deterrent for contraventions of these provisions. The formula has the effect that the penalty is a maximum of 20,000 penalty units, or is calculated proportionately to the benefit obtained or 10% of the annual turnover. The risk of being liable for a civil penalty or prosecuted for a criminal offence outweighs the potential benefit from contravention of one of the specified provisions of the Bill.

The corporate multiplier outlined in subsection 4B(3) of the Crimes Act 1914 for criminal offences, and the corporate multiplier in section 82(5) of the Regulatory Powers Act for calculating the civil penalties, do not apply to calculating the criminal and civil pecuniary penalties under the provisions specified above. A contrary intention is expressed that the penalty for a body corporate for a contravention of those provisions is calculated in accordance with the formula in clause 54G.

The subclause makes it clear that the penalty payable by a body corporate for each act or omission relating to contravention of one of the specified provisions is to be no more than the greatest of the following:

a)    20,000 penalty units;

b)    if the first body, and any related body corporate of the first body, has obtained, directly or indirectly, a benefit that is reasonably attributable to the conduct constituting the contravention, and the relevant court can determine the value of that benefit—three times the value of that benefit;

c)    if the relevant court cannot determine the value of a benefit referred to in paragraph (b) or no such benefit has been obtained—10% of the annual turnover of the first body during the period (the turnover period ) of 12 months ending at the end of the month in which the first body committed, or began committing, the contravention.

Subclause (3) will make it clear that the term annual turnover , during the turnover period, is the sum of the values of all the supplies that the first body, and any related body corporate of the first body, have made, or are likely to make, during that period. However, annual turnover excludes the following supplies:

a)       supplies made from the first body to any related body corporate of the first body;

b)       supplies made from any related body corporate of the first body to the first body;

c)       supplies that are input taxed;

d)      supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 );

e)       supplies that are not made in connection with an enterprise that the first body carries on.

Subclause (4) will make it clear that expressions used in subclause (3) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subclause as they have in that Act.

Subclause (5) will clarify that the question of whether two bodies corporate are related to each other will be determined in accordance with the Corporations Act 2001 .



 

Item 24           After section 56

Item 24 will introduce a provision dealing with civil penalties under Part 4 of the Regulatory Powers Act.

Subclause 56A(1) will provide that each civil penalty provision of the AMLI Act will be enforceable under Part 4 of the Regulatory Powers Act. A note will be included at the end of subclause 56A(1) that will advise the reader that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

This will mean that the standard provisions in Part 4 of the Regulatory Powers Act will apply in relation to the AMLI Act. In particular, section 85 of the Regulatory Powers Act will apply to the proposed civil penalty provisions in the AMLI Act. Section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions; for example, they do not carry the possibility of imprisonment.

Authorised applicant

Subclause 56A(2) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, the Secretary will be an authorised applicant in relation to the civil penalty provisions referred to in subclause 56A(1). For example, under section 82 of the Regulatory Powers Act, an authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

Relevant court

Subclause 56A(3) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, each relevant court is a relevant court in relation to the civil penalty provisions referred to in subclause 56A(1). Item 4 will define the term relevant court to mean the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the AMLI Act.

Item 24 will also introduce a provision dealing with infringement notices under the Regulatory Powers Act. Clause 56B will apply the standard infringement notice provisions in Part 5 of the Regulatory Powers Act to subclause 54D(2) of the Bill. This will mean that the enforcement framework for infringement notices issued in relation to this provision of the Bill will be provided for by Part 5 of the Regulatory Powers Act.

Subclause 54D(2) is a strict liability offence. Infringement notices will be able to be issued under the Regulatory Powers Act in relation to the identified strict liability offence. An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice, or electing to have the matter dealt with by a court.

Section 104 of the Regulatory Powers Act provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they do so, the person may be prosecuted in a court for the alleged contravention.

Subclause 56B(1) will provide that subclause 54D(2) will be able to be enforced by way of an infringement notice under Part 5 of the Regulatory Powers Act. A note will be included at the end of subclause 56B(1) that will advise the reader that Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Subclause 56B(2) will provide that, for Part 5 of the Regulatory Powers Act, the Secretary will be an infringement officer. This will mean the Secretary will be able to issue infringement notices for alleged contraventions. Subclause 56B(2) will also provide that, for Part 5 of the Regulatory Powers Act, the Secretary will be the relevant chief executive.

Clause 56C will provide for particular modifications to the operation of Part 5 of the Regulatory Powers Act.

Subclause 56C(1) will provide that, instead of stating the matters referred to in paragraph 104(1)(d) of the Regulatory Powers Act, an infringement notice must state the name and contact details of the person who gave the notice, and how the person has power to issue the infringement notice. Paragraph 104(1)(d) of the Regulatory Powers Act provides that the notice must state the name and contact details of the person who gave the notice, and that the person is an infringement officer for the purposes of issuing the infringement notice.

Amount payable under the infringement notice

Subclause 56C(2) will provide that the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of the provision by the person must be the least of:

·          one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

·          12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

Clause 56D will cover criminal liability for executive officers of bodies corporate. Clause 56D deals with circumstances where executive officers of bodies corporate may be liable for the contravention of a criminal offence by a body corporate.

Subclause 56D(1) will provide that an executive officer of a body corporate commits an offence if the body corporate contravenes subclause 54A(1) or 54D(1); and

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

The proposed criminal penalty is imprisonment for eight years or 480 penalty units, or both. The prospect of criminal liability is intended to ensure that executive officers take all reasonable steps to prevent contraventions of the AMLI Act by bodies corporate relating to export of live-stock.

Subclause 56D(2) will provide that an executive officer of a body corporate commits an offence if the body corporate contravenes subclause 54B(1), 54C(1), 54E(1) or 54F(1); and

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

The proposed criminal penalty is imprisonment for ten years or 5,000 penalty units, or both. The prospect of criminal liability is intended to ensure that executive officers take all reasonable steps to prevent contraventions of the AMLI Act by bodies corporate relating to export of live-stock.

Subclause 56D(3) will set out the matters that the court may have regard to when determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention under subclause 56D(1) and 56D(2). These include any action taken by the officer directed towards ensuring that:

·           the body corporate arranges professional assessments of the body corporate’s compliance with the offence provisions specified under paragraph 56D(1)(a) and 56D(2)(a);

·           the body corporate implements any appropriate recommendations arising from any assessments;

·           the body corporate’s employees, agents and contractors have reasonable knowledge and understanding of any requirements to comply with the offence provisions specified under paragraph 56D(1)(a) and 56D(2)(a);

·           the body corporate had in place adequate procedures to prevent the contravention.

Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention. Reasonable steps are generally a question of fact determined on a case by case basis.

Subclause 56D(4) will provide that subclause 56D(3) does not limit subclause 56D(1) or 56D(2).

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence.  

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Clause 56E will cover civil liability for executive officers of bodies corporate and will complement the proposed criminal offence in clause 56D. Clause 56E deals with circumstances where executive officers of bodies corporate may be liable for the contravention of a civil penalty provision by a body corporate relating to exports of live-stock.

Subclause 56E(1) will provide that an executive officer of a body corporate is liable to a civil penalty if the body corporate contravenes subclause 54A(2) or 54D(3); and

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

The proposed civil penalty is 960 penalty units. The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. This principle underpins the Parliament’s approach when setting the level of civil penalties in legislation and reflects the Parliamentary intention that the primary purpose of civil penalties is deterrence. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

Subclause 56E(2) will provide that an executive officer of a body corporate is liable to a civil penalty if the body corporate contravenes subclause 54B(3), 54C(3), 54E(3) or 54F(3); and

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

The proposed civil penalty is 10,000 penalty units. The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. This principle underpins the Parliament’s approach when setting the level of civil penalties in legislation and reflects the Parliamentary intention that the primary purpose of civil penalties is deterrence. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

Subclause 56E(3) will set out the meaning of recklessness for the purposes of subclause 56E(1) and 56E(2). The executive officer is reckless if the officer is aware there is a substantial risk that the contravention would occur and, having regard to the circumstances known to the officer, it is unjustifiable to take the risk.

Subclause 56E(4) will set out the meaning of negligence for the purposes of subclause 56E(1) and 56E(2). The executive officer is negligent if the officer’s conduct involves such a great falling short of the standard care that a reasonable person would exercise in the circumstances and such a high risk that the contravention would occur that the conduct merits the imposition of a pecuniary penalty.

Subclause 56E(5) will set out the matters that the court may have regard to when determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention under subclause 56E(1) and 56E(2). These include any action taken by the officer directed towards ensuring that:

·           the body corporate arranges professional assessments of the body corporate’s compliance with the offence provisions specified under paragraph 56E(1)(a) and 56E(2)(a);

·           the body corporate implements any appropriate recommendations arising from any assessments;

·           the body corporate’s employees, agents and contractors have reasonable knowledge and understanding of any requirements to comply with the offence provisions specified under paragraph 56E(1)(a) and 56E(2)(a);

·           the body corporate had in place adequate procedures to prevent the contravention.

Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention. Reasonable steps are generally a question of fact determined on a case by case basis.

Subclause 56E(6) will provide that subclause 56E(5) does not limit subclause 56E(1) or 56E(2).

The proposed civil penalties reflect the underlying principle of deterrence. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct.

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Clause 56F will deal with the making of adverse publicity orders . Clause 56F will set out the circumstances in which a relevant court may make an adverse publicity order in relation to a person who has been ordered to pay a penalty for a contravention of a provision of specified provisions relating to the export of live-stock, or has been found guilty of an offence against one of the specified provisions.

Subclause 56F(1) will empower a court, on application by the Secretary, or on its own initiative, to make an adverse publicity order against a person who has been ordered to a pay a penalty for a contravention of subclause 54A(2), 54B(3), 54C(3), 54D(3), 54E(3) or 54F(3), or has been found guilty of an offence against subclause 54A(1), 54B(1), 54C(1), 54D(1), 54E(1) or 54F(1).

Subclause 56F(2) will empower a relevant court, on application by the Director of Public Prosecutions, to make an adverse publicity order in relation to a person who has been found guilty of an offence against subclause 54A(1), 54B(1), 54C(1), 54D(1), 54E(1) or 54F(1).

Paragraph 56F(3)(a) will provide that an adverse publicity order, in relation to a person, is an order that requires the person to take either or both of the following actions within the period specified in the order:

·           disclose, in the way and to the persons specified in the order, details of the contravention or offence, its consequences, the penalty imposed and any other related matter;

·           publish, at the person’s expense and in the way specified in the order, details of the contravention or offence, its consequences, the penalty imposed and any other related matter.

Paragraph 56F(3)(b) will provide that an adverse publicity order, in relation to a person, is an order that requires the person give the Secretary evidence, within 14 days after the end of the period specified in the order, that the action or actions were taken by the person in accordance with the order.

Subclause 56F(4) will provide that clause 56F does not limit a court’s powers under any other provision of Part 1 of the AMLI Act.

This proposed amendment will enable examples of non-compliance to be drawn to the public’s attention. Such orders can draw public attention to a particular wrongdoing and can be an effective deterrent for an organisation that is concerned about its reputation. The prospect of adverse publicity is intended to incentivise compliance with the provisions of the AMLI Act relating to the export of live-stock.

Item 25: Subsection 70(2)

Item 25 will insert “or functions” after “powers” in subsection 70(2) of the AMLI Act. This will clarify that the Secretary may delegate all or any of his or her powers or functions under the AMLI Act.

Item 26: At the end of section 70

Item 26 will insert subclause 70(3) which deals with delegation of powers and functions by the Secretary. Subclause 70(3) will allow the Secretary to delegate powers or functions the Secretary has as an authorised applicant or infringement officer for the purposes of a provision of the Regulatory Powers Act because of the AMLI Act.

Part 2 - Amendment of the Export Control Act 1982

Export Control Act 1982

Item 27           Section 3

Item 27 will insert a definition of the term civil penalty provision into section 3 of the EC Act. ‘Civil penalty provision’ will have the same meaning as in the Regulatory Powers Act. 

Item 27 will also insert a definition of the term engage in conduct in section 3 of the EC Act. ‘Engage in conduct’ will mean to do an act or to omit to perform an act.

Item 28           Section 3 (definition of evidentiary material )

Item 28 will revise the definition of the term evidential material in section 3 of the EC Act. Evidential material will be an inclusive definition as follows:

evidential material means any of the following things, including such a thing in electronic form:

            (a)        a thing with respect to which:

            (i)         an offence against this Act has been committed or is suspected, on reasonable grounds, to have been committed; or

            (ii)        a civil penalty provision of this Act has been contravened or is suspected, on reasonable grounds, to have been contravened;

            (b)        a thing as to which there are reasonable grounds for suspecting that it will afford evidence as to:

            (i)         the commission of an offence against this Act; or

            (ii)        the contravention of a civil penalty provision of this Act;

            (c)        a thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of:

            (i)         committing an offence against this Act; or

            (ii)        contravening a civil penalty provision of this Act.

The revised definition of evidential material will be used in the provisions dealing with searches and seizures in relation to contraventions of both civil penalty provisions and the criminal offences in the EC Act.

Item 29           Section 3

Item 29 will insert a definition of the term executive officer into section 3 of the EC Act. An executive officer of a body corporate will mean “a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.”

This amendment will clarify that the meaning of executive officer includes both executive and non-executive directors and will have particular relevance to proposed Division 9 of Part III of the EC Act (liability of executive officers of bodies corporate).

Item 29 will also insert a definition of Regulatory Powers Act . This definition will provide that ‘Regulatory Powers Act’ means the Regulatory Powers (Standard Provisions) Act 2014 .

Item 29 will also insert a definition of relevant court . This definition will provide that ‘relevant court’ means the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the EC Act.

Item 30           Division 2 of Part IIA (at the end of the heading)

Item 30 will amend the heading to Division 2 of Part IIA of the EC Act to include a reference to civil penalty provisions. This will reflect the fact that Division 2 will now include civil penalty provisions and offences.

Item 31           Section 9K

Current section 9K of the EC Act makes it a strict liability offence to obstruct or hinder an accredited veterinarian, or an authorised officer, in undertaking any activities in an approved export program. The penalty is currently at 50 penalty units. Obstructing or hindering an accredited veterinarian or an authorised officer may seriously undermine the credibility of exporting live-stock from Australian territory. It may threaten what is central to the value of export trade: the health and welfare of the live animals. Such conduct may completely destroy the reliability of the live animal export trade and may put at risk Australia’s reputation as an exporter of live animals.

To address this concern, item 31 will repeal existing section 9K and insert new clause 9K. Clause 9K will set out a fault-based offence, strict liability offence and civil penalty provisions for when a person engages in conduct that obstructs or hinders an accredited veterinarian or an authorised officer in undertaking any of the activities in an approved export program.

The fault-based offence in subclause 9K(1) will be subject to a penalty of imprisonment for eight years or 480 penalty units. The corresponding fine for a body corporate for a contravention of subclause 9K(1) is 2,400 penalty units.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

The strict liability offence in subclause 9K(2) will be subject to a penalty of 50 penalty units, which is consistent with the Guide for strict liability offences.

The civil penalty in subclause 9K(3) will be 960 penalty units. The corresponding fine for a body corporate for a contravention of subclause 9K(3) is 4,800 penalty units.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the EC Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 31 will also insert a new clause 9KA that will set out a fault-based offence and civil penalty provision for when a person engages in conduct with the intention of dishonestly influencing another person in the undertaking of any of the activities in an approved export program.

The fault-based offence in subclause 9KA(1) will be subject to a penalty of imprisonment of eight years or 480 penalty units. The corresponding fine for a body corporate for a contravention of subclause 9KA(1) is 2,400 penalty units.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence.  

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

The civil penalty in subclause 9KA(2) will be 960 penalty units. The corresponding fine for a body corporate for a contravention of subclause 9KA(2) will be 4,800 penalty units.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the EC Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The legislation will prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Item 32           Section 10C (heading)

Item 32 will amend the heading to section 10C of the EC Act by omitting the words “offence-related”. This will reflect the fact that section 10C will now apply to civil penalties provisions and not just criminal offences.

Item 33           Division 3 of Part III (heading)

Item 33 will repeal the heading to Division 3 of Part III of the EC Act and substitute “Division 3 - Searches and Seizures”. This will reflect the fact that Division 3 of Part III will now apply to civil penalties provisions and criminal offences.

Item 34           Section 10D (heading)

Item 34 will amend the heading to section 10D of the EC Act by omitting the words “offence-related”. This will reflect the fact that section 10D will now apply to civil penalties provisions and criminal offences.

Item 35           Section 10E (heading)

Item 35 will repeal the heading to section 10E of the EC Act and substitute “Application for and issue of search warrant”. This will reflect the fact that section 10E will now apply to civil penalties provisions and criminal offences.

Item 36           Paragraph 10E(4)(a)

Item 36 will amend paragraph 10E(4)(a) of the EC Act by inserting the words “or contravention” after “offence”. This will reflect the fact that paragraph 10E(4)(a) will now apply to civil penalties provisions and criminal offences.

Item 37           Paragraph 10E(5)(a)

Item 37 will amend paragraph 10E(5)(a) of the EC Act by inserting the words “or contravention” after “offence”. This will reflect the fact that paragraph 10E(5)(a) will now apply to civil penalties provisions and criminal offences.

Item 38           At the end of paragraph 10E(5)(b)

Item 38 will amend paragraph 10E(5)(b) of the EC Act by adding the words “or another contravention of a civil penalty provision of this Act”. This will reflect the fact that Division 3 of Part III of the EC Act will now apply to civil penalties provisions and criminal offences.

Item 39           At the end of subsection 10E(5)

Item 39 will amend subsection 10E(5) of the EC Act by adding the words “or contravening a civil penalty provision of this Act”. This will reflect the fact that Division 3 of Part III of the EC Act will now apply to civil penalties provisions and criminal offences.

Item 40           Subparagraph 10F(1)(d)(i)

Item 40 will amend subparagraph 10F(1)(d)(i) of the EC Act by adding the words “or contravention” after “offence”. This will reflect the fact that subparagraph 10F(1)(d)(i) will now apply to contraventions of civil penalties provisions and criminal offences.

Item 41           At the end of subparagraph 10F(1)(d)(ii)

Item 41 will amend subparagraph 10F(1)(d)(ii) of the EC Act by adding the words “or another contravention of a civil penalty provision of this Act”. This will reflect the fact that Division 3 of Part III of the EC Act will now apply to civil penalties provisions and criminal offences.

Item 42           At the end of subsection 10F(1)

Item 42 will amend subsection 10F(1) of the EC Act by adding the words “or contravening a civil penalty provision of this Act”. This will reflect the fact that Division 3 of Part III of the EC Act will now apply to civil penalties provisions and criminal offences.

Item 43           Subsection 10F(3)

Item 43 will amend subsection 10F(3) by inserting “or investigating or commencing proceedings for a contravention of a civil penalty provision” after “offence”. This will reflect that fact that things seized under a warrant may be used to investigate contraventions of civil penalty provisions as well as offences.

Item 44           Paragraph 11J(2)(a)

Item 44 will amend paragraph 11J(2)(a) by inserting “or a civil penalty provision of this Act has been contravened” after “committed”. This will reflect that it may be necessary to keep things seized for the purpose of investigating contraventions of civil penalty provisions as well as offences.

Item 45           Paragraph 11J(2)(b)

Item 45 will repeal paragraph 11J(2)(b) and replace it with the words “to enable evidence of an offence, or a contravention of a civil penalty provision of this Act, to be secured for the purposes of a proceeding”. This will enable evidence to be secured for the purposes of civil penalty proceedings as well as prosecutions for criminal offences.



 

Item 46           At the end of Part III

Division 8—Civil penalties under Part 4 of the Regulatory Powers Act

Item 46 will insert a new Division 8 in Part III of the EC Act dealing with civil penalties under Part 4 of the Regulatory Powers Act.

Subclause 13A(1) will provide that each civil penalty provision of the EC Act will be enforceable under Part 4 of the Regulatory Powers Act. A note will be included at the end of subclause 13A(1) that will advise the reader that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

This will mean that the standard provisions in Part 4 of the Regulatory Powers Act will apply in relation to the EC Act. In particular, section 85 of the Regulatory Powers Act will apply to the proposed civil penalty provisions in the EC Act. Section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions; for example, they do not carry the possibility of imprisonment.

Authorised applicant

Subclause 13A(2) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, the Secretary will be an authorised applicant in relation to the civil penalty provisions referred to in subclause 13A(1). For example, under section 82 of the Regulatory Powers Act, an authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

Relevant court

Subclause 13A(3) will provide that, for the purposes of Part 4 of the Regulatory Powers Act, each relevant court (as defined in clause 3 of the EC Act) is a relevant court in relation to the civil penalty provisions referred to in subclause 13A(1). Clause 3 will define the term relevant court to mean the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the EC Act.

Division 9—Liability of executive officers of bodies corporate

Item 46 will also insert a new Division 9 in Part III of the EC Act dealing with liability of executive officers of bodies corporate in relation to approved export programs . This Division will provide that an executive officer of a body corporate will, in certain circumstances, commit an offence or be liable to a civil penalty for a contravention by the body corporate.

Division 9 is intended to ensure that liability can be attributed to any person who is concerned in, or takes part in, the management of a body corporate involved in a contravention of the EC Act relating to approved export programs. It recognises the extra responsibility that executive officers have in ensuring the appropriate conduct of a body corporate and their duty to take action to prevent contraventions of the EC Act. Item 29 defines executive officer of a body corporate to mean “a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.” Both executive and non-executive directors will be subject to the new Division 9.

Clause 13B will cover criminal liability for executive officers of bodies corporate relating to approved export programs. Clause 13B deals with circumstances where executive officers of bodies corporate may be liable for the contravention of a criminal offence by a body corporate. Subclause 13B(1) will provide that an executive officer of a body corporate commits an offence if:

·           the body corporate contravenes subclause 9K(1) or 9KA(1), and:

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

Subclause 9K(1) is a fault-based offence that will provide that a person obstructs or hinders an accredited veterinarian, or an authorised officer, in the undertaking of any of the activities in an approved export program. Subclause 9KA(1) is a fault-based offence that will provide that a person commits an offence if they engage in conduct with the intention of dishonestly influencing another person in the undertaking of any of the activities in an approved export program.

The proposed penalty for an executive officer who commits an offence under clause 13B is imprisonment for eight years or 480 penalty units, or both.

In accordance with the Guide, each offence should have a maximum penalty that is adequate to deter and punish a worst case offence, including repeat offenders. In addition, the prescribed level of penalties must have an element of retribution or punishment, and rehabilitation in order to restore Australia’s trading reputation. The proposed amendments to the criminal penalty provisions reflect these principles.

The maximum criminal penalty will represent an appropriate sanction and reflects the seriousness of the offence within the relevant legislative scheme for regulating the control of exports. The high maximum penalty is justified because of the strong financial and commercial incentives to commit the offence where the consequences of the commission of the offence are particularly damaging, and which may impact Australia’s trading reputation.

The increased criminal penalties are necessary to achieve the legitimate objective of maintaining overseas market access for goods exported from Australia, complying with government or industry standards or requirements relating to the goods, ensuring the integrity of the goods and giving effect to Australia’s rights and obligations. Further, the proposed penalties are reflective of the seriousness of the conduct and the risk that contravening behaviour may pose to animal health, and trade.

Subclause 13B(2) will set out the matters that the court may have regard to when determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention under subclause 13B(1). These include any action taken by the officer directed towards ensuring that:

·           the body corporate arranges professional assessments of the body corporate’s compliance with subclauses 9K(1) and 9KA(1);

·           the body corporate implements any appropriate recommendations arising from any assessments;

·           the body corporate’s employees, agents and contractors have a reasonable knowledge and understanding of any requirements to comply with the subclauses 9K(1) and 9KA(1) to the extent those requirements affect the employees, agents or contractors involved;

·           the body corporate had in place adequate procedures to prevent the contravention.

Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention. Reasonable steps are generally a question of fact determined on a case by case basis.

Subclause 13B(3) will provide that subclause 13B(2) does not limit subclause 13B(1).

Item 46 will also introduce clause 13C. Clause 13C will cover civil liability for executive officers of bodies corporate relating to approved export programs and will complement the proposed criminal offence in clause 13B. Clause 13C deals with circumstances where executive officers of bodies corporate may be liable for the contravention of a civil penalty provision by a body corporate relating to approved export programs. Subclause 13C(1) will provide that an executive officer of a body corporate is liable to a civil penalty if:

·           the body corporate contravenes subclause 9K(3) or 9KA(2), and:

·           the officer knew, or was reckless or negligent as to whether, the contravention would occur; and

·           the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

·           the officer failed to take all reasonable steps to prevent the contravention.

The proposed civil penalty is 960 penalty units.

The overriding purpose of the new civil penalties will be to deter the reoccurrence of the offending conduct, whether by the same or a different person. This principle underpins Parliament’s approach when setting the level of civil penalties in legislation and reflects the Parliamentary intention that the primary purpose of civil penalties is deterrence. Unlike criminal penalties, civil penalty proceedings are not concerned with retribution and rehabilitation but are primarily, if not wholly, protective in promoting the public interest in compliance.

The proposed civil penalties reflect the underlying principle of deterrence. That is, if a person believes they are likely to be ordered to pay a substantial penalty if they contravene a civil penalty provision of the AMLI Act, and that penalty exceeds the actual or anticipated profit the person could expect to earn from the contravening conduct, then the person will make a rational decision that it is not worthwhile to engage in the contravening conduct.  

The legislation will seek to prescribe a penalty that will have a meaningful deterrent effect. For example, a penalty will not be seen as simply an acceptable cost of doing business. The penalty should confirm that such conduct will not be rewarded and that the penalty will outweigh any potential benefit.

Subclause 13C(2) will set out the meaning of recklessness for the purposes of subclause 13C(1). The executive officer is reckless if the officer is aware there is a substantial risk that the contravention would occur and, having regard to the circumstances known to the officer, it is unjustifiable to take the risk.

Subclause 13C(3) will set out the meaning of negligence for the purposes of subclause 13C(1). The executive officer is negligent if the officer’s conduct involves such a great falling short of the standard care that a reasonable person would exercise in the circumstances and such a high risk that the contravention would occur that the conduct merits the imposition of a pecuniary penalty.

Subclause 13C(4) will set out the matters that the court may have regard to when determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention under subclause 13C(1). These include any action taken by the officer directed towards ensuring that:

·           the body corporate arranges professional assessments of the body corporate’s compliance with subclauses 9K(3) and 9KA(2);

·           the body corporate implements any appropriate recommendations arising from any assessments;

·           the body corporate’s employees, agents and contractors have reasonable knowledge and understanding of any requirements to comply with the subclauses 9K(3) and 9KA(2) to the extent those requirements affect the employees, agents or contractors involved;

·           the body corporate had in place adequate procedures to prevent the contravention.

Additionally, the court may consider any action taken by the officer once the officer became aware of the contravention. Reasonable steps are generally a question of fact determined on a case by case basis.

Subclause 13C(5) will provide that subclause 13C(4) does not limit subclause 13C(1).

Division 10 Adverse publicity orders

Item 46 will also insert a new Division 10 in Part III of the EC Act dealing with the making of adverse publicity orders . This Division will set out the circumstances in which a relevant court may make an adverse publicity order in relation to a person who has been ordered to pay a penalty for a contravention of a provision of Division 2 of Part IIA (which deals with approved export programs), or has been found guilty of an offence against a provision of that Division.

Clause 13D will cover adverse publicity orders. Subclause 13D(1) will empower a court, on application by the Secretary, or on its own initiative, to make an adverse publicity order against a person who has been ordered to a pay a penalty for a contravention of a provision of Division 2 of Part IIA, or has been found guilty of an offence against a provision of that Division.

Subclause 13D(2) will empower a relevant court, on application by the Director of Public Prosecutions, to make an adverse publicity order in relation to a person who has been found guilty of an offence against a provision of Division 2 of Part IIA of the EC Act.

Subclause 13D(3) will provide that an adverse publicity order, in relation to a person, is an order that requires the person to take either or both of the following actions within the period specified in the order:

·           disclose, in the way and to the persons specified in the order, details of the contravention or offence, its consequences, the penalty imposed and any other related matter;

·           publish, at the person’s expense and in the way specified in the order, details of the contravention or offence, its consequences, the penalty imposed and any other related matter.

Paragraph 13D(3)(b) will provide that an adverse publicity order, in relation to a person, is an order that requires the person give the Secretary evidence, within 14 days after the end of the period specified in the order, that the action or actions were taken by the person in accordance with the order.

Subclause 13D(4) will provide that clause 13D does not limit a court’s powers under any other provision of the EC Act.

This amendment will enable examples of non-compliance to be drawn to the public’s attention. Such orders can draw public attention to a particular wrongdoing and can be an effective deterrent for an organisation that is concerned about its reputation. The prospect of adverse publicity is intended to incentivise compliance with the provisions of the EC Act relating to approved export programs.

Item 47           After subsection 19(1)

Item 47 will insert subclause 19(1A) which deals with the delegation by the Secretary. Subclause 19(1)(A) will allow the Secretary to delegate powers or functions the Secretary has as an authorised applicant for the purposes of a provision of the Regulatory Powers Act because of the EC Act.

Item 48           Subsection 24B(2)

Item 48 will amend subsection 24B(2) which deals with evidence of transmission of information or a document. It will insert the phrase “or a contravention of a civil penalty provision of this Act” after “this Act” to clarify that subsection 24B(2) will apply to any proceedings in a court for an offence against the EC Act or a contravention of a civil penalty provision under the EC Act.

Item 49           At the end of paragraph 25(2)(c)

Item 49 will amend paragraph 25(2)(c) which deals with the power of the Governor-General to make regulations. It will insert the phrase “or a contravention of a civil penalty provision of this Act” to clarify that paragraph 25(2)(c) includes a certificate in proceedings in respect of an offence against the EC Act or a contravention of a civil penalty provision under the EC Act.

Part 3 Application provisions

Item 50           Application of amendments

Item 50 is an application provision.

Subclause 50(1) will provide that the amendments to the AMLI Act made by Part 1 of Schedule 1 of the Bill apply in relation to acts or omissions occurring after commencement of this item.

Subclause 50(2) will provide that the amendments to the EC Act made by Part 2 of Schedule 1 of the Bill apply in relation to acts or omissions occurring after commencement of this item.