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Introduced into the House of
Representatives on 27 June 2012
Portfolio: Infrastructure and Transport
1.2
The committee considers that this bill is compatible with human rights
as defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
1.3
The committee notes that the bill engages the right to the presumption
of innocence contained in Article 14(2) of the International Covenant on Civil
and Political Rights (ICCPR).
1.4
This bill amends the Protection of the Sea (Prevention of Pollution
from Ships) Act 1983 to implement amendments to the Annexes to the
International Convention for the Prevention of Pollution from Ships which were
adopted by the Marine Environment Protection Committee of the International
Maritime Organisation on 15 July 2011. The bill imposes restrictions on the
discharge of sewage from passenger ships in special areas; revises requirements
relating to the disposal by ships of garbage at sea and makes the Energy
Efficiency Design and the Ship Energy Efficiency Management Plan mandatory for
certain ships.
1.5
The bill also:
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clarifies the application of Federal jurisdiction in the parts of
the territorial sea that lie between Australian baselines and 3 nautical miles
out to sea from those baselines; and
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repeals the Stevedoring Levy (Imposition) Act 1998 and the
Stevedoring Levy (Collection) Act 1998.
Right to the presumption of
innocence (Article 14(2) ICCPR)
1.6
The statement of compatibility indicates that the bill may raise human
rights issues because it contains a strict liability offence, which may raise
concerns with respect to the presumption of innocence.
1.7
Section 26FEW of the bill requires Australian ships to carry a Ship
Energy Efficiency Management Plan (SEEMP). The master and the owner of the ship
each commit an offence of strict liability if the ship does not have on board a
SEEMP.
1.8
Strict liability offences are provided for in section 6.1 of the Criminal
Code Act 1995. The effect of an offence being one of strict liability is
to remove the need for the prosecution to prove fault in the defendant, with
respect to the contravention of the requirement, which it would otherwise be
incumbent on the prosecution to do.
1.9
Article 14(2) of the ICCPR protects the right of a person charged with a
criminal offence ‘to be presumed innocent until proved guilty according to
law’. The UN Human Rights Committee has provided little guidance on how Article
14 (2) ICCPR should be interpreted in the context of strict liability
offences. However, case law from comparable jurisdictions with analogous
protections (such as the United Kingdom, New Zealand and Canada, as well as the
jurisprudence of the European Court of Human Rights) indicates that such
offences will not necessarily violate the presumption of innocence, so long as
they pursue a legitimate aim and are reasonable, necessary and proportionate to
that aim.
1.10
The statement of compatibility states that that shipowners and masters
have a responsibility to be aware of the requirement for the ship to carry a
SEEMP and to ensure that the ship in fact carries the SEEMP, and therefore if
the SEEMP is not carried by the ship they should be liable without any need to
prove intention or recklessness on their part. Further, sometimes it may be
difficult to prove that they had the requisite mental element (i.e. intention
or recklessness), hence a requirement to prove a mental element would make the
offence harder to enforce.
1.11
The statement of compatibility indicates that the provision for the
strict liability offence is consistent with guidance issued by the Senate
Standing Committee for the Scrutiny of bills and by the Criminal Justice
Division of the Attorney-General’s Department, about the circumstances in which
strict liability offences are appropriate.
1.12
The committee considers that strict liability offences which are drafted
in accordance with these principles are likely to be consistent with the
presumption of innocence, in particular as they require consideration of
whether:
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the offence is regulatory (in other words, it is justifiable to
expect individuals who participate in a regulated activity to be deemed to have
accepted certain conditions, particularly where those activities carry public
health and safety or environmental risks, and to show why they are not at fault
for infringements); and
-
the penalty falls at the lower end of the scale and does not
include imprisonment.
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