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BIOSECURITY AMENDMENT (BALLAST WATER AND OTHER MEASURES) BILL 2017

                                     2016-2017




       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                         HOUSE OF REPRESENTATIVES




BIOSECURITY AMENDMENT (BALLAST WATER AND OTHER MEASURES)
                        BILL 2017




             SUPPLEMENTARY EXPLANATORY MEMORANDUM




                                 Amendments and
               New Clauses to be Moved on Behalf of the Government




(Circulated by authority of the Deputy Prime Minister and Minister for Agriculture and
                    Water Resources, the Hon. Barnaby Joyce MP)
AMENDMENT TO THE BIOSECURITY AMENDMENT (BALLAST WATER AND
                 OTHER MEASURES) BILL 2017
GENERAL OUTLINE
The Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 (Bill) will make
amendments to the Biosecurity Act 2015 (Biosecurity Act) in order to strengthen Australia's
biosecurity system by better protecting both our marine ecosystems and human health.
The proposed Government amendment to the Bill will ensure that on the face of the law,
Australian vessels and foreign vessels will be eligible for the same exceptions from the
offence to discharge ballast water.

FINANCIAL IMPACT STATEMENT
No significant direct or indirect financial impact on the Commonwealth will arise from the
proposed amendment.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This amendment is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
The full Statement of Compatibility with Human Rights is at the end of this explanatory
memorandum.




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NOTES ON AMENDMENTS

Amendment 1: Schedule 1, item 30, page 9 (line 8)

This amendment omits the phrase "Subsection (1) does" and substitutes "Subsections (1) and
(1A) do", under the proposed subsection 270(4) of the Biosecurity Act (inserted by item 30 of
Schedule 1 to the Bill).

Subsection 270(1) of the Biosecurity Act, as amended by item 27 of Schedule 1 to the Bill,
provides for an offence for Australian vessels that discharge ballast water, either in or outside of
Australian seas. Proposed subsection 270(1A) of the Biosecurity Act provides for an offence for
foreign vessels that discharge ballast water in Australian seas.

Currently, proposed subsection 270(4) of the Biosecurity Act provides that the offence in
subsection 270(1) does not apply if various conditions are met. However, there is no
corresponding reference for proposed subsection 270(1A).

Amendment 1 will clarify proposed subsection 270(4) of the Biosecurity Act to make it clear that
the offence set out by proposed subsection 270(1A) of that Act does not apply to foreign vessels
if the conditions provided by proposed subsection 270(4) of that Act are met. This technical
amendment puts it beyond doubt that foreign vessels are able to undertake the same
management, or meet the same conditions, as Australian vessels in order to be excepted from the
offence to discharge ballast water. It is important that this is clear on the face of the legislation,
without which Australia's compliance with the Ballast Water Convention could be questioned by
other State Parties.




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


    Amendment to the Biosecurity Amendment (Ballast Water and Other Measures)
                                    Bill 2017


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

Overview of the amendment

The Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 (Bill) will amend
the Biosecurity Act 2015 (Biosecurity Act) to position Australia to be fully legislatively
compliant with the International Convention for the Control and Management of Ships'
Ballast Water and Sediments (Ballast Water Convention). These changes will reduce the
risk of invasive marine pests and pathogens entering Australian seas.

The purpose of the proposed Government amendment is to ensure that it is not an offence for
foreign vessels to discharge ballast water in Australian seas, if certain conditions, as set out
by new subsection 270(4) (item 30, Schedule 1 of the Bill), are met. Currently,
subsection 270(4) provides that this is only the case in relation to Australian vessels
(subsection 270(1)).

Human rights implications

This amendment extends the exception to the offence provisions contained in section 270 to
foreign vessels, so that they apply equally to Australian and foreign vessels. Discharge of
ballast water by foreign vessels in Australian seas is already an offence under section 270 of
the Biosecurity Act 2015. It remains necessary for the public good to manage ballast water
and sediments by ensuring that before discharge, ballast water is managed appropriately.

This Government amendment does not broaden the scope of the offence, rather it ensures that
the offence is subject to the appropriate exceptions. In that sense, it narrows the scope of the
offence, and ensures foreign vessels are not unduly penalised on the face of the legislation.

The amendment engages the following right:

Right to the presumption of innocence (reverse burden provisions)

Section 270 of the Biosecurity Act 2015 provides that a person in charge or the operator of a
vessel contravenes the provision if the vessel discharges ballast water. Subsection 270(1)
provides for the offence for Australian vessels, while subsection 270(1A) provides for the
offence for foreign vessels. Item 30 of the Bill clearly provides exceptions (offence specific
defence) to the offence under subsection 270(1), stating that the offence does not apply if
certain conditions are met and certain plans are in place. This Government amendment
clarifies that the exception provision includes subsection 270(1A), to ensure that foreign
vessels have access to the same exceptions under section 270.


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Laws which shift the burden of proof to a defendant, commonly known as 'reverse burden
provisions', can be considered a limitation of the presumption of innocence. This is because a
defendant's failure to discharge a burden of proof or prove an absence of fault may permit
their conviction despite reasonable doubt as to their guilt. This includes where an evidential
or legal burden of proof is placed on a defendant.

Reverse burden offences will not necessarily be inconsistent with the presumption of
innocence provided that the reverse burden pursues a legitimate objective and is reasonable,
necessary and proportionate to achieving that objective. Whether a reverse burden provision
impermissibly limits the right to the presumption of innocence will depend on the
circumstances of the case and the particular justification for the reverse burden.

The Australian Government Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers notes that placing the burden of proof on the defendant
should be limited to where the matter is peculiarly within the knowledge of the defendant and
where it is significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter.

The exception to the offence provided by subsection 270(1A) is justified as:

    It is peculiarly within the knowledge of the defendant whether the conditions required by
     the exceptions will have been fulfilled. For example, the defendant (the person in charge
     or the ship's operator) will have access to the appropriate information and
     documentation, such as the ship's records, to show that conditions have been fulfilled,
     such as the ballast water was discharged at a water reception facility (section 277), or
     that the discharge was part of an acceptable ballast water exchange (section 282).

    It would be significantly more difficult and costly for the prosecution to disprove than for
     the defendant to establish that the conditions have been fulfilled. This is because the
     defendant will have the easiest access to appropriate records to show that conditions set
     out by the exception have been fulfilled.

It is also necessary that the defendant bears the evidential burden in order to achieve the
legitimate objective of ensuring the biosecurity risk associated with ballast water is
appropriately managed in Australian seas. The reversal of evidential proof is reasonable and
proportionate to the legitimate objective because the knowledge of whether the defendant has
evidence of the exception will be peculiarly within their knowledge and comes within the
terms for the reverse burden provision to appropriately apply.

Conclusion

The proposed Government amendment is compatible with human rights, and to the extent
that it may limit human rights, those limitations are reasonable, necessary and proportionate.




    (Circulated by authority of the Deputy Prime Minister and Minister for Agriculture and
                        Water Resources, the Hon. Barnaby Joyce MP)



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