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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT BILL
2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Environment Protection,
Heritage and the Arts, the Hon Peter Garrett AM MP)
OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT BILL
2010
OUTLINE
The Ozone Protection and Synthetic Greenhouse Gas Management Amendment Bill
2010 (the Bill) improves the operation of the Ozone Protection and
Synthetic Greenhouse Gas Management Act 1989 (the Ozone Act) by:
. introducing a civil penalties regime and providing for the
establishment of an infringement notice scheme;
. clarifying the powers of inspectors, particularly in relation to the
collection and testing of ozone depleting substances and synthetic
greenhouse gases and search of electronic data storage;
. providing for inspectors to be assisted in exercising their powers.
This is particularly important where technical specialists are
required;
. improving the procedures for dealing with evidential material,
including the seizure, retention, return or forfeiture of that
material and providing for enhanced testing arrangements;
. clarifying the purposes of the Ozone Account (the Account), which is a
Special Account established by the Act, to support the development of
evidence-based policy by allowing research to be funded from the
Account;
and by making a number of other technical and administrative amendments to
the Act.
The amendments contained in this Bill address a number of issues that have
arisen in the operation of the Ozone Act since its enactment in 1989,
particularly in relation to compliance and enforcement. Industry
stakeholders have expressed a desire for more frequent and effective
enforcement of the Ozone Act (and regulations) through an Australia-wide
consultation process in 2008 and otherwise.
The Bill is divided into two schedules that deal with the following
matters:
. General amendments of the Ozone Act; and
. Other amendments of the Ozone Act.
Financial Impact Statement
This Bill will have no financial impact.
OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT BILL
2010
NOTES ON CLAUSES
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the
Act.
Clause 2: Commencement
2. Sections 1 to 3 of the Act will commence on the day the Act
receives Royal Assent.
3. Schedules 1 and 2 of the Act will commence on a single day to be
fixed by proclamation or six months after the Act receives Royal
Assent, whichever happens sooner.
Clause 3: Schedule(s)
4. This is a machinery provision that provides that each Act, which
is specified in a schedule to this Act, is amended as set out in the
items of the schedule.
SCHEDULE 1 - GENERAL AMENDMENTS
Item 1 - At the end of section 6A (before the note)
5. This item amends section 6A of the Ozone Act to extend the
application of Chapter 2 of the Criminal Code (other than Part 2.5 of
the Criminal Code) to all offences against the Act or the regulations.
Currently, section 6A only applies Chapter 2 of the Criminal Code to
offences against the Ozone Act.
Item 2 - Subsection 7(1)
6. This item inserts a definition of civil penalty order. This
definition is required as a consequence of the inclusion of civil
penalties in the Ozone Act.
Item 3 - Subsection 7(1)
7. This item inserts a definition of civil penalty provision. This
definition is also required as a consequence of the inclusion of civil
penalties in the Ozone Act.
Item 4 - Subsection 7(1)
8. This item inserts a definition of designated court. Designated
courts will have jurisdiction in relation to applications for
compensation, applications that goods are not forfeitable goods and
civil penalties.
Item 5 - Subsection 7(1)
10. This item provides that the definition of enforcement powers is
that provided in section 53. Item 86 inserts a new section 53 into the
Ozone Act which sets out the powers of Inspectors when searching for
evidence of an offence or contravention of a civil penalty provision.
Item 6 - Subsection 7(1)
11. This item inserts a definition of enforcement warrant. Item 87
inserts new sections 55E and 55F into the Ozone Act which provide for
the issuing of enforcement warrants by magistrates.
Item 7 - Subsection 7(1)
12. This item inserts a definition of evidential burden which will
apply to civil penalty proceedings. The definition mirrors the
definition of evidential burden in section 13.3 of the Criminal Code.
Item 8 - Subsection 7(1)
13. This item inserts a definition of evidential material. This
definition is required as a consequence of the inclusion of civil
penalties and the extension of the enforcement powers in Part VIII of
the Ozone Act to cover contraventions of civil penalty provisions.
Item 9 - Subsection 7(1)
14. This item inserts a definition of executive officer of a body
corporate.
Item 10 - Subsection 7(1)
15. This item provides that the definition of forfeitable goods is
that given in section 57.
Item 11 - Subsection 7(1)
16. This item provides that a forfeiture notice is a notice under
subsection 60A(1).
Item 12 - Subsection 7(1)
17. This item provides that the definition of monitoring powers is
that given in section 51A. Item 85 inserts a new section 51A into the
Ozone Act which sets out the monitoring powers of Inspectors.
Item 13 - Subsection 7(1)
18. This item inserts a definition of offence against this Act or the
regulations to clarify that this term includes offences against
sections 137.1 and 137.2 of the Criminal Code that relate to the Act
or regulations. Sections 137.1 and 137.2 of the Criminal Code relate
to providing false or misleading statements or documents.
Item 14 - Subsection 7(1)
19. This item inserts a definition of penalty unit and provides that
the definition is the same as that in section 4AA of the Crimes Act
1914. This definition will apply to civil penalty proceedings and
ensures the definition of penalty units is the same for both criminal
and civil proceedings.
Item 15 - Subsection 7(1)
20. This item inserts a definition of Secretary.
Item 16 - At the end of subsection 8(1)
21. This item makes a technical amendment to subsection 8(1). The
effect of the amendment is that a ministerial determination of a quota
period must be in writing.
Item 17 - Subsection 8(2)
22. This item substitutes a new subsection 8(2) into the Ozone Act.
New subsection 8(2) confirms that a determination of quota periods for
HCFC imports and manufacture under subsection 8(1) of the Act is a
legislative instrument for the purposes of the Legislative Instruments
Act 2003. Subsection 8(2) currently provides that a determination
setting quota periods is a disallowable instrument for the purposes of
s 46A of the Acts Interpretation Act 1901. Section 46A of the Acts
Interpretation Act 1901 has been repealed, however, subparagraph
6(d)(i) of the Legislative Instruments Act 2003 deems an instrument to
be a legislative instrument if the instrument is made in the exercise
of a power delegated by parliament before 1 January 2005 and declared
by the enabling legislation to be disallowable instruments for the
purposes of s 46A of the Acts Interpretation Act 1901. Therefore, this
amendment confirms existing law regarding legislative instruments; it
also removes reference to the repealed s 46A of the Acts
Interpretation Act 1901.
Item 18 - At the end of section 13
23. This item inserts a new subsection 13 (9) into the Ozone Act.
Subsection 13(9) provides for a civil penalty as an alternative to the
offences in subsections 13(1), (1AA), (1AB), (1A), (2), (3), (4), (5),
(6) and (6A) of the Ozone Act which relate to the import, export or
manufacture of an ozone depleting substance, synthetic greenhouse gas
or pre-charged equipment without the appropriate licence. The maximum
penalty for a contravention of these civil penalty provisions is the
same as the maximum penalty for contravention of the corresponding
criminal offence; that is 500 penalty units.
Item 19 - Before paragraph 16(5)(a)
24. This item inserts a new paragraph 16(5)(aa) into the Ozone Act.
Paragraph 16(5)(aa) allows the Minister to have regard to civil
penalty orders made against a person in the preceding ten years when
considering whether or not a person is a fit and proper person to be
granted a licence under the Ozone Act. With the inclusion of civil
penalties in the Ozone Act, consideration of civil penalties in this
context is appropriate as it is relevant to determining whether an
applicant meets the fit and proper person requirements.
Item 20 - After paragraph 16(5)(b)
25. This item inserts new paragraphs 16(5)(ba), (bb) and (bc) into the
Ozone Act which allow the Minister to consider previous conduct of
executive officers of a body corporate when considering whether or not
a body corporate is a fit and proper person to be granted a licence
under the Ozone Act. Previous conduct which can be taken into account
includes contraventions of civil penalty provisions in the Ozone Act
and criminal convictions, whether under the Ozone Act or another law
of the Commonwealth, a State or a Territory. It is currently unclear
whether the Minister can consider the conduct of the executive
officers when applying the fit and proper person requirement to bodies
corporate. The conduct of executive officers is pertinent to
determining whether a body corporate is a fit and proper person,
particularly, for example, in relation to new corporations that have
clean records but the executive officers of that body corporate may
not. The objective of this amendment and those in items 21, 24, 25 and
26 is to allow the Minister to explicitly consider the conduct of
executive officers when deciding whether a body corporate is a fit and
proper person to be granted a licence.
Item 21 - After paragraph 16(5)(c)
26. This item inserts a new paragraph 16(5)(ca) into the Ozone Act.
New paragraph 16(5)(ca) allows the Minister to consider whether or not
an executive officer of a body corporate is bankrupt, has applied to
take the benefit of any law for the relief of bankrupt or insolvent
debtors, has compounded with creditors or has made an assignment of
remuneration benefits, when considering whether or not a body
corporate is a fit and proper person to be granted a licence. The
effect of this amendment is to broaden the matters the Minister can
have regard to when determining whether a body corporate is a fit and
proper person to be granted a licence.
Item 22 - Paragraph 16(5)(d)
27. This item amends paragraph 16(5)(d) of the Ozone Act to allow the
Minister to take into account false or misleading statements made in
an application under either the Act or the regulations when
considering whether or not an applicant is a fit and proper person to
be granted a licence. Since 2005, applications have been made under
the regulations for refrigeration and air conditioning and fire
protection industry permits. The objective of this amendment is to
update the Ozone Act to reflect those amendments to the regulations
and allow the Minister to consider false or misleading statements in
applications under the regulations when considering whether a person
meets the fit and proper person requirements.
Item 23 - Paragraph 16(5)(e)
28. This item amends paragraph 16(5)(e) in consequence of the
amendments to paragraph 16(5)(d) (see item 22) and allows the
Minister, in circumstances where a false and misleading statement has
been made in an application under either the Ozone Act or the
regulations, to consider whether the person knowingly made the false
or misleading statement when deciding whether or not that person is a
fit and proper person to be granted a licence.
Item 24 - After paragraph 16(5)(e)
29. This item inserts paragraphs 16(5)(ea) and 16(5)(eb) to the Ozone
Act. These provisions allow the Minister to consider whether an
executive officer of a body corporate has made a false or misleading
statement in an application under the Ozone Act or regulations and
whether the executive officer knowingly made the false statement, when
deciding whether or not a body corporate is a fit and proper person to
be granted a licence. The effect of this amendment is to broaden the
matters the Minister can have regard to when determining whether a
body corporate is a fit and proper person to be granted a licence.
Item 25 - After paragraph 16(5)(f)
30. This item inserts paragraph 16(5)(fa) into the Ozone Act.
Paragraph 16(5)(fa) will allow the Minister to consider whether an
executive officer of a body corporate has contravened a condition of a
licence issued under the Ozone Act when considering whether or not a
body corporate is a fit and proper person to be granted a licence
under the Ozone Act. The objective of this amendment is to allow the
Minister to properly consider further relevant information when
assessing whether a body corporate applicant is a fit and proper
person.
Item 26 - At the end of subsection 16(5)
31. This item adds paragraph 16(5)(h) into the Ozone Act. This
amendment allows the Minister to take into account whether an
executive officer of a body corporate has held a licence issued under
the Ozone Act and that was cancelled under section 20, when
considering whether or not a body corporate is a fit and proper person
to be granted a licence under the Ozone Act.
Item 27 - After subsection 18(7B)
32. This item inserts subsections 18(7C), (7D), (7E) and (7F) into
the Ozone Act. These provisions provide for a civil penalty as an
alternative to the offence in subsection 18(7) of the Ozone Act
relating to the contravention of a licence condition. The maximum
penalty for a contravention of this civil penalty provision is the
same as the maximum penalty for contravention of the corresponding
criminal offence; that is 500 penalty units.
33. A licensee will not contravene the civil penalty provision in
subsection 18(7C) if they have a reasonable excuse. A person who
wishes to claim they have a reasonable excuse bears an evidential
burden in relation to that matter. This reflects the reasonable excuse
defence for the mirror criminal offence in subsection 18(7) and the
evidential burden in relation to that defence as set out in section
13.3 of the Criminal Code.
Item 28 - At the end of section 19
34. This item adds subsection 19(4) into the Ozone Act which defines
the licence period for a pre-charged equipment licence.
35. Currently, pre-charged equipment licences are valid until the end
of the licence period in which it was issued. Licence periods run from
1 January of every even numbered year to 31 December of the following
year (a two year period).
36. New subsection 19(4) provides that pre-charged equipment licences
will be in force for two years from the date of issue or for a shorter
period specified, unless it is cancelled or stops being in force for
any other reason before then. This ensures that pre-charged equipment
licensees get the full time period value of their licence.
Item 29 - Before paragraph 20(2)(a)
37. This item inserts a new paragraph 20(2)(aa) into the Ozone Act
which allows the Minister to consider civil penalty orders made
against a person in the preceding ten years when considering whether a
person continues to be a fit and proper person to hold a licence. With
the inclusion of civil penalties in the Ozone Act, consideration of
civil penalties in this context is appropriate as it is relevant to
determining whether a person continues to be a fit and proper person
to hold a licence.
Item 30 - At the end of paragraph 20(2)(a)
38. This item makes a minor grammatical correction to this paragraph.
Item 31 - At the end of paragraph 20(2)(b)
39. This item makes a minor grammatical correction to this paragraph.
Item 32 - After paragraph 20(2)(b)
40. This item inserts new paragraphs 20(2)(ba), (bb) and (bc) into the
Ozone Act. These new paragraphs allow the Minister to consider
previous conduct of executive officers of a body corporate when
considering whether or not a body corporate continues to be a fit and
proper person to hold a licence. Previous conduct which can be taken
into account includes contraventions of civil penalty provisions in
the Ozone Act and criminal convictions, whether under the Ozone Act or
another law of the Commonwealth, a State or a Territory. It is
currently uncertain as to whether the Minister can consider the
conduct of executive officers in applying the fit and proper person
requirement to bodies corporate. The conduct of executive officers is
relevant to the question of whether a body corporate is a fit and
proper person to remain as a licensee. This amendment, as well as
those in items 34 and 36, enables the Minister to specifically
consider certain conduct of executive officers when deciding whether a
body corporate is a fit and proper person to remain a licensee.
Item 33 - At the end of paragraph 20(2)(c)
41. This item makes a minor grammatical correction to this paragraph.
Item 34 - After paragraph 20(2)(c)
42. This item inserts a new paragraph 20(2)(ca) into the Ozone Act.
New paragraph 20(2)(ca) allows the Minister to consider whether or not
an executive officer of a body corporate is bankrupt, has applied to
take the benefit of any law for the relief of bankrupt or insolvent
debtors, has compounded with creditors or has made an assignment of
remuneration benefits, when considering whether or not a body
corporate is a fit and proper person to remain a licensee. The effect
of this amendment is to broaden the matters the Minister can have
regard to when determining whether a body corporate is a fit and
proper person to remain a licensee.
Item 35 - Paragraph 20(2)(d)
43. This item amends paragraph 20(2)(d) of the Ozone Act to allow the
Minister to take into account false or misleading statements made in
an application under either the Act or the regulations when
considering whether or not a person continues to be a fit and proper
person to hold a licence. Since 2005, applications have been made
under the regulations for refrigeration and air conditioning and fire
protection industry permits. The objective of this amendment is to
update the Ozone Act to reflect those amendments to the regulations
and allow the Minister to consider false or misleading statements in
applications under the regulations when considering whether a person
meets the fit and proper person requirements.
Item 36- At the end of subsection 20(2)
44. This item adds paragraphs 20(2)(f) and (g) to the Ozone Act. These
provisions allow the Minister to consider whether an executive officer
of a body corporate has made a false or misleading statement in an
application under the Ozone Act or regulations and whether the person
knowingly made the false statement, when deciding whether or not a
body corporate continues to be a fit and proper person to hold a
licence. This amendment will enable the Minister to consider further
relevant information when deciding whether a body corporate remains a
fit and proper person.
Item 37 - Section 25 (table item 9, column 3)
45. This item corrects a drafting error in the amounts of HCFC allowed
in the reserve quota for each year from 2016 to 2029 (inclusive) from
0.5 ODP tonnes to 0.24 ODP tonnes. The effect of this amendment is to
ensure that the sum total of the HCFC industry limit (see section 24
of the Ozone Act) and the HCFC reserve quota, does not exceed
Australia's total quota for 2016 and beyond under the Montreal
Protocol.
Item 38 - At the end of section 26
46. This item adds a new subsection 26(4) into the Ozone Act. New
subsection 26(4) provides that a notice under section 26 of the Ozone
Act, declaring the start of the first HCFC quota period, is not a
legislative instrument for the purposes of the Legislative Instruments
Act 2003. This provision clarifies the operation of section 5 of the
Legislative Instruments Act 2003 and is not a substantive exemption.
Item 39 - Subsection 38(1) (penalty)
47. This item increases the maximum penalty for the offence in
subsection 38(1) of the Ozone Act from 50 penalty units to 500 penalty
units. This offence relates to contravention of the provisions in
Schedule 4 of the Ozone Act by certain types of corporation. For
example, a foreign corporation or a trading corporation formed within
the limits of the Commonwealth. The new penalty aligns with similar
offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 40 - Subsection 38(2) (penalty)
48. This item increases the maximum penalty for the offence in
subsection 38(2) of the Ozone Act from 50 penalty units to 500 penalty
units. This offence relates to contravention of the provisions in
Schedule 4 of the Ozone Act by persons engaged in certain kinds of
activities, for example, trade or commerce between Australia and
places outside Australian or between the States or the supply of goods
or services to the Commonwealth. The new penalty aligns with similar
offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 41 - After subsection 38(2A)
49. This item inserts subsections 38(2B), (2C) and (2D) into the Ozone
Act. New subsections 38(2B), (2C) and (2D) provide for a civil penalty
as an alternative to the offences in subsections 38(1) and 38(2) of
the Ozone Act. The maximum penalty for a contravention of these civil
penalty provisions is the same as the maximum penalty for
contravention of the corresponding criminal offence; that is 500
penalty units (the amended penalty - see items 39 and 40).
Item 42 - After subsection 41(2)
50. This item inserts subsections 41(2A) and (2B) into the Ozone Act.
New subsections 41(2A) and (2B) clarify the Minister's power to remove
a country from the Register of Montreal Protocol countries and/or
remove a substance from the Register in relation to a country.
Removing a country and/or a substance from the Register of Montreal
Protocol countries limits trade in ozone depleting substances with
that country and allows the Minister to give effect in Australia to
Australia's obligations under the Montreal Protocol.
Item 43 - At the end of section 41
51. This adds subsection 41(6) into the Ozone Act. The effect of this
amendment is to clarify that the Register of Montreal Protocol
countries maintained by the Minister in accordance with subsection
41(1), is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003. This provision clarifies the
operation of section 5 of the Legislative Instruments Act 2003 and is
not a substantive exemption.
Item 44 - Subsection 44(1) (penalty)
52. This item increases the maximum penalty for the offence in
subsection 44(1) of the Ozone Act from 100 penalty units to 300
penalty units. This offence relates to the importation of a stage-1
scheduled substance from a non-Montreal Protocol country. Stage-1
scheduled substances include the CFC described in Division 1 of Part 1
of Schedule 1 of the Ozone Act and halon. The new penalty aligns with
similar offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 45 - After subsection 44(2)
53. This item inserts subsections 44 (2A) and (2B) into the Ozone
Act. New subsections 44(2A) and (2B) provide for a civil penalty as an
alternative to the offence in subsection 44(1) of the Ozone Act. The
maximum penalty for a contravention of this civil penalty provision is
the same as the maximum penalty for contravention of the corresponding
criminal offence; that is 300 penalty units (the amended penalty - see
item 44).
Item 46 - Subsection 44(3) and Item 47 - Subsection 44(3)
54. These items amend subsection 44(3) of the Ozone Act. The effect of
these amendments is that the offence in subsection 44(1) and the new
civil penalty provision in subsection 44(2A) apply to products
declared by the Minister to be subject to subsections 44(1) and
44(2A). The products declared by the Minister must be included in the
annex referred to in paragraph 3 of Article 4 of the Montreal
Protocol. These amendments are required as a consequence of the
inclusion of the mirror civil penalty provision in subsection 44(2A)
(see item 45).
Item 48 - Subsection 44(4)
55. This item amends subsection 44(4) of the Ozone Act. The effect of
this amendment is that a declaration of a product under subsection
44(3) of the Ozone Act no longer needs to be published in the Gazette.
This amendment is required as a consequence of item 53 which provides
that a declaration under subsection 44(3) is now a legislative
instrument and therefore published on the Federal Register of
Legislative Instruments.
Item 49 - Subsection 44(5) (penalty)
56. This item increases the maximum penalty for the offence in
subsection 44(5) of the Ozone Act from 100 penalty units to 300
penalty units. This offence relates to the importation of a stage-2
scheduled substance from a non-Montreal Protocol country. Stage - 2
scheduled substances include the CFC described in Division 2 of Part 1
of Schedule 1 of the Ozone Act, carbon tetrachloride, methyl
chloroform and bromochloromethane. The new penalty aligns with similar
offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 50 - After subsection 44(5A)
57. This item inserts subsections 44 (5B) and (5C) into the Ozone
Act. The purpose of this amendment is to provide for a civil penalty
as an alternative to the offence in subsection 44(5) of the Ozone Act.
The maximum penalty for a contravention of this civil penalty
provision is the same as the maximum penalty for contravention of the
corresponding criminal offence; that is 300 penalty units (the amended
penalty - see item 49).
Item 51 - Subsection 44(6) and Item 52 - Subsection 44(6)
58. These items amend subsection 44(6) of the Ozone Act. The effect
of these amendments is that the offence in subsection 44(5) and the
new civil penalty provision in subsection 44(5B) apply to products
declared by the Minister to be subject to subsections 44(5) and
44(5B). The products declared by the Minister must be included in the
annex referred to in paragraph 3 bis of Article 4 of the Montreal
Protocol. These amendments are required as a consequence of the
inclusion of the mirror civil penalty provision in subsection 44(5B)
(see item 50).
Item 53 - Subsection 44(7)
59. This item repeals subsection 44(7) of the Ozone Act and
substitutes a new subsection 44(7). The purpose of this amendment is
to clarify that declarations under subsections 44(3) and (6) of the
Ozone Act are legislative instruments for the purposes of the
Legislative Instruments Act 2003.
Item 54 - Subsection 45(1) (penalty)
60. This item increases the maximum penalty for the offence in
subsection 45(1) of the Ozone Act from 100 penalty units to 300
penalty units. This offence relates to the importation from a non-
Montreal Protocol country of a product in the manufacture of which a
stage-1 scheduled substance was used. The new penalty aligns with
similar offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 55 - After subsection 45(2)
61. This item inserts subsections 45(2A) and (2B) into the Ozone Act.
This amendment provides for a civil penalty as an alternative to the
offence in subsection 45(1) of the Ozone Act. The maximum penalty for
a contravention of this civil penalty provision is the same as the
maximum penalty for contravention of the corresponding criminal
offence; that is 300 penalty units (the amended penalty - see item
54).
Item 56 - Subsection 45(3) and Item 57 - Subsection 45(3)
62. These items amend subsection 45(3) of the Ozone Act. The effect of
these amendments is that the offence in subsection 45(1) and the new
civil penalty provision in subsection 45(2A) apply to products
declared by the Minister to be subject to subsections 45(1) and
45(2A). The products declared by the Minister must be included in the
annex referred to in paragraph 4 of Article 4 of the Montreal
Protocol. These amendments are required as a consequence of the
inclusion of the mirror civil penalty provision in subsection 45(2A)
(see item 55).
Item 58 - Subsection 45(3A) (penalty)
63. This item increases the maximum penalty for the offence in
subsection 45(3A) of the Ozone Act from 100 penalty units to 300
penalty units. This offence relates to the importation from a non-
Montreal Protocol country of a product in the manufacture of which a
stage-2 scheduled substance was used. The new penalty aligns with
similar offences under the Environment Protection and Biodiversity
Conservation Act 1999 and ensures an adequate deterrent to
contravention is maintained.
Item 59 - After subsection 45(3AA)
64. This item inserts subsections 45(3AB) and (3AC) into the Ozone
Act. The purpose of this amendment is to provide for a civil penalty
as an alternative to the offence in subsection 45(3A) of the Ozone
Act. The maximum penalty for a contravention of this civil penalty
provision is the same as the maximum penalty for contravention of the
corresponding criminal offence; that is 300 penalty units (the amended
penalty - see item 58).
Item 60 - Subsection 45(3B) and Item 61 - Subsection 45(3B)
65. These items amend subsection 45(3B) of the Ozone Act. The effect
of these amendments is that the offence in subsection 45(3A) and the
new civil penalty provision in subsection 45(3AB) apply to products
declared by the Minister to be subject to subsections 45(3A) and
45(3AB). The products declared by the Minister must be included in the
annex referred to in paragraph 4 bis of Article 4 of the Montreal
Protocol. These amendments are required as a consequence of the
inclusion of the mirror civil penalty provision in subsection 45(3AB)
(see item 59).
Item 62 - Subsection 45(4) and Item 63 - Subsection 45(4)
66. These items make minor consequential amendments to subsection
45(4).
67. The purpose of item 62 is to ensure that the exemption in
relation to products imported in accordance with conditions determined
by the Minister, which currently applies to the offences in
subsections 45(1) and (3A), will also apply to the mirror civil
penalty provisions in subsections 45(2A) and (3AB).
68. The effect of the amendment in item 63 is to confirm that if the
Minister sets out certain conditions under which the import of a
product will be exempt from the application of subsections 45(1),
(2A), (3A) and (3AB), those conditions must be determined in writing.
Item 64 - Subsection 45(6)
69. This item amends subsection 45(6) of the Ozone Act. The effect of
this amendment is that a declaration of a product under subsections
45(3) or (3B) or the determination of conditions under subsection
45(4) of the Ozone Act no longer needs to be published in the Gazette.
This amendment is required as a consequence of item 65 which provides
that these instruments are now legislative instruments and therefore
published on the Federal Register of Legislative Instruments.
Item 65 - Subsections 45(7) and (8)
70. This item repeals subsections 45(7) and (8) of the Ozone Act and
substitutes new subsections 45(7), (8) and (9).
71. New subsections 45(7) and (8) provide that instruments made under
45(3), (3B) or (4) of the Ozone Act are legislative instruments for
the purposes of the Legislative Instruments Act 2003. This amendment
confirms existing law regarding legislative instruments and removes
reference to the repealed s 46A of the Acts Interpretation Act 1901.
72. New subsection 45(9) provides that a Ministerial
determination under subsection 45(4) commences on the first day on
which the determination is no longer liable to be disallowed or to
have been taken to have been disallowed under the Legislative
Instruments Act 2003. This amendment removes a reference to a now
repealed section of the Acts Interpretation Act 1901. These new
provisions have the same effect as the repealed Acts Interpretation
Act 1901 provisions.
Item 66 - Subsection 45B(1) (penalty)
73. This item increases the maximum penalty for the offence in
subsection 45B(1) of the Ozone Act from 100 penalty units to 300
penalty units. This offence relates to the discharge of scheduled
substances that is not in accordance with the regulations. The new
penalty aligns with similar offences under the Environment Protection
and Biodiversity Conservation Act 1999 and ensures an adequate
deterrent to contravention is maintained.
Item 67 - After subsection 45B(2)
74. This item inserts subsections 45B(2A) and (2B) into the Ozone Act.
The purpose of this amendment is to provide for a civil penalty as an
alternative to the offence in subsection 45B(1) of the Ozone Act. The
maximum penalty for a contravention of this civil penalty provision is
the same as the maximum penalty for contravention of the corresponding
criminal offence; that is 300 penalty units (the amended penalty - see
item 66).
Item 68 - Subsection 45B(3)
75. This item amends subsection 45B(3) of the Ozone Act. Subsection
45B(3) provides for an exception to the offence of unlawful discharge
of a scheduled substance where a product is being used for its
designed purpose (except where the product is a halon fire
extinguisher and the product is being used for training purposes).
This addition incorporates the new civil penalty provision of
subsection 45B(2A) (see item 67).
Item 69 - Subsection 45B(3) (note)
76. This item amends the note to subsection 45B(3). The purpose of
this note is to inform people of the application of the evidential
burden provisions of the Criminal Code to subsection 45B(3).
Subsection 45B(3) now also provides an exception to the mirror civil
penalty provision in subsection 45B(2A). The Criminal Code only
applies to criminal proceedings and not civil penalty proceedings. The
amendment to the note clarifies that the evidential burden
requirements of the Criminal Code only apply to a defendant in
criminal proceedings.
Item 70 - After subsection 45B(3)
77. This section inserts a new subsection 45B(3A) into the Ozone Act.
This amendment imposes an evidential burden on a person who wishes to
rely on subsection 45B(3) in a civil penalty proceeding. This mirrors
the evidential burden for defendants wishing to rely on subsection
45B(3) in criminal proceedings as set out in the Criminal Code.
Item 71 - Subsection 46(1)
78. This item amends subsection 46(1) of the Ozone Act to change the
reporting requirements for licensees. Currently, licensees must
submit a report within 15 days after the end of the quarter. This
provides only a 15 day window in which reporting can occur. For
certain importers, especially low volume importers, it is preferable
that they report prior to the end of the quarter as they will only
import once in the quarter. The amended reporting requirements will
allow licensees to report at any time prior to the 15th day after the
end of the quarter. This is less administratively cumbersome both for
the importer and government.
Item 72 - Subsection 46(1)
79. This item amends subsection 46(1) of the Ozone Act to change the
format in which licensees must submit their report. The new
requirement is that it be in accordance with the regulations. This
amendment removes the unnecessary administrative process of having the
Minister or his/her delegate approve each change in the reporting
format.
Item 73 - Subsections 46(1B), (1BA) and (1C)
80. This item amends subsections 46(1B), (1BA) and (1C) of the Ozone
Act to change the reporting requirements for licensees, who import,
export or manufacture a synthetic greenhouse gas or import pre-charged
equipment. The effect of these amendments is similar to item 71 in
that it changes the reporting period for certain licensees from a
fifteen day window at the end of the quarter to any time from the
start of the quarter to a date 15 days after the end of the quarter.
Item 74 - Subsection 46(2) (penalty)
81. This item reduces the maximum penalty for the offence in
subsection 46(2) of the Ozone Act from 100 penalty units to 60 penalty
units. This offence relates to the failure to submit reports in
accordance with subsection 46(1). This reduction recognises the less
serious nature of this offence when compared to other offences which
involve actual venting of scheduled substances or actions which put
Australia at risk of failing to meet its international obligations.
Item 75 - Subsection 46(2AA) (penalty)
82. This item increase the maximum penalty for the offence in
subsection 46(2AA) of the Ozone Act from 10 penalty unit to 60 penalty
units. This offence relates to the failure to submit reports as
required by subsections 46(1B), (1BA) and (1C). This amendment
reflects that the offences in subsections 46(2) and (2AA) are of a
similar nature and the penalty should be the same.
Item 76 - After subsection 46(2B)
83. This item inserts subsections 46(2C), (2D), (2E), (2F) and (2G)
into the Ozone Act. These provisions provide for a civil penalty as an
alternative to the offences in subsections 46(2) and (2AA). The
maximum penalty for a contravention of these civil penalty provisions
is the same as the maximum penalty for contravention of the
corresponding criminal offence; that is 60 penalty units (the amended
penalties - see items 74 and 75).
84. A person will not contravene the civil penalty provision in
subsections 46(2C) and (2D) if they have a reasonable excuse. A person
who wishes to claim they have a reasonable excuse bears an evidential
burden in relation to that matter. This reflects the reasonable excuse
defence for the mirror criminal offences in subsections 46(2) and
(2AA) and the evidential burden in relation to that defence as set out
in section 13.3 of the Criminal Code.
Item 77 - Division 1 of Part VIII (heading)
85. This item amends the title of the Division to make it a more
accurate reflection of the contents of the Division.
Item 78 - Before section 48A
86. This item is a machinery provision that creates Subdivision A of
Division 1.
Item 79 - At the end of section 49
87. This item adds a new subsection 49(3) into the Ozone Act. New
subsection 49(3) requires the Minister to be satisfied that a person
has suitable qualifications and experience to properly exercise the
powers of an inspector, before appointing a person as an inspector
under the Act.
Item 80 - After section 49
88. This item inserts section 49A into the Ozone Act and requires
inspectors exercising powers under the Act to do so in accordance with
any directions that the Minister may give in relation to those powers.
The purpose of new section 49A is to require inspectors to comply with
extant departmental policies, procedures and guidelines in the
exercise of their powers.
89. Subsection 49A(2) provides that a written direction to an
inspector made under subsection 49(1) is not a legislative instrument.
This provision clarifies the operation of section 5 of the Legislative
Instruments Act 2003 and is not a substantive exemption.
Item 81 - Before section 51
90. This item is a machinery provision that creates Subdivision B of
Division 1.
Item 82 - Subsection 51(1)
91. This item makes minor technical amendments to subsection 51(1) as
a consequence of the insertion of new section 51A which sets out the
monitoring powers of inspectors.
Item 83 - Subsection 51(3)
92. This item also makes minor technical amendments as a consequence
of the insertion of new section 51A
Item 84 - Subsection 51(4)
93. This item repeals subsection 51(4). Subsection 51(4) limits the
premises an inspector can enter to monitor compliance with the Ozone
Act or the regulations. Subsection 51(4) excludes premises which may
contain relevant material and as a result restricts the ability of
inspectors to effectively monitor compliance. The types of premises on
which an inspector may exercise his or her powers will now be included
in subsection 51(1) and is determined by whether entry is reasonably
necessary in order to monitor compliance.
Item 85 - After section 51
94. This item inserts new sections 51A and 51B into the Ozone Act.
95. Section 51A sets out the monitoring powers of inspectors. In
addition to the monitoring powers currently in the Ozone Act, section
51A enables inspectors to take samples of, or conduct tests on, any
gas or other substance and to take onto the premises such equipment
and materials as the inspector requires for the purpose of exercising
the monitoring powers. This new suite of powers is required because,
ozone depleting substances and synthetic greenhouse gases are often
colourless, odourless liquids or gases which require in situ testing
or laboratory testing of samples, to determine if it is or is not a
scheduled substance and because specialist equipment is required to
conduct such tests and take such samples. These provisions are
consistent with Commonwealth legislation and are based on the
monitoring powers in the Fuel Quality Standards Act 2000.
96. New subsections 51A (2) and (3) and (4) enable inspectors to
operate computers and other similar devices to find out whether they
contain information that is relevant to ascertaining whether a person
has complied with the Ozone Act or regulations. The new powers allow
inspectors to make copies of information stored on computers and other
similar devices and to take those copies away. Subsection 51A(4)
stipulates that the powers in subsections 51A(2) and (3) can only be
exercised where the inspector believes, on reasonable grounds, that
exercising those powers will not damage the equipment. These
additional powers are required as most modern business records are
stored electronically, not in paper form.
97. Subsection 51A(5) allows an inspector to secure an item in situ
for 24 hours where the inspector believes, on reasonable grounds, that
the item affords evidence of an offence or a contravention of a civil
penalty provision and it is necessary to secure the item to prevent
its concealment, loss or destruction before a warrant can be obtained.
Items cannot be secured for more than 24 hours without an order from a
magistrate.
98. Before exercising the power under subsection 51A(5), an
inspector must provide a written notice to the occupier of the
premises (or his/her representative) setting out the thing(s) that the
inspector intends to secure. Subsection 51A(10) makes it an offence
for a person to move, alter or interfere with an item that has been
specified in a notice issued in accordance with subsection 51A(5). The
maximum penalty for this offence is 2 years imprisonment.
99. Section 51B allows persons who are not inspectors to assist
inspectors in exercising the monitoring powers. Allowing assistants
recognises that many of the tests and inspections that need to be
carried out require specialist technical knowledge and expertise which
an inspector may not possess. Assistants have limited powers and may
only exercise those powers in accordance with a direction given by an
inspector. For all purposes, any monitoring power exercised by an
assistant is taken to have been exercised by the instructing
inspector.
Item 86 - Sections 52 and 53
100. This item repeals sections 52 and 53 and inserts three new
Subdivisions into Division 1 of Part VIII of the Ozone Act
(Subdivision C - Enforcement powers, Subdivision D - General
provisions relating to seizure etc. and Subdivision E - Obligations
and incidental powers of inspectors).
Subdivision C - Enforcement powers (new sections 52, 53 and 53A - 53C)
101. This item includes a Subdivision which sets out the enforcement
powers of inspectors. These powers were previously referred to as
offence related search and seizure powers. The change in definition
reflects that these powers will be exercised to search for evidence
relating to both criminal offences as well as contraventions of civil
penalty provisions.
102. New section 52 allows an inspector to enter premises with the
consent of the occupier or under an enforcement warrant. This type of
warrant is new to the Ozone Act and is created by the new section 55E
(see item 87).
103. Section 53 sets out the enforcement powers of an inspector. The
enforcement powers enable an inspector to take a sample of evidential
material and to take onto the premises equipment or material required
for the purpose of exercising the enforcement powers. These powers are
required as evidential material will often be in the form of a
colourless, odourless liquid or gas, stored in amounts of one tonne or
more, and seizing the entire object would not be practicable. These
provisions are modelled on the search and seizure powers in the Fuel
Quality Standards Act 2000.
104. Subsection 53(2) allows an inspector to seize evidential material
found during a search but only in circumstances where they are on the
premises under an enforcement warrant.
105. Subsections 53(3) and (4) allow inspectors to inspect computers or
other similar equipment, to operate such equipment to ascertain
whether it contains evidential material and to seize the equipment or
make copies of the information contained on such equipment but only in
circumstances where the inspector believes that these things can be
carried out without damaging the equipment. These additional powers
are required as most modern business records are stored
electronically, not in paper form. These provisions are consistent
with Commonwealth legislation and are based on the search and seizure
powers in the Fuel Quality Standards Act 2000.
106. Subsections 53(6) and (7) set out further restrictions on the
seizure of computers and other like equipment. Equipment can only be
seized by an inspector if the inspector is on the premises under an
enforcement warrant and it is not practicable to make copies of the
information contained in the equipment. Seizure is also permitted
where continued possession of the equipment by the occupier would
constitute an offence against a law of the Commonwealth.
107. Subsection 53(8) allows inspectors, searching premises under an
enforcement warrant, to seize anything they reasonably believe to be
evidential material if that seizure is necessary to prevent the
material's loss, concealment or destruction or that seizure is
necessary to prevent the ongoing commission of an offence or
contravention of a civil penalty provision.
108. Subsections 53(9), (10) and (11) deal with the seizure of
containers which contain something the inspector has the power to
seize. Where a container contains something that an inspector is
permitted to seize and it is not reasonably practicable to seize the
thing without also seizing the container, the inspector may seize the
container as well as the seizable thing. This power is necessary as
the seizable thing will most often be a liquid or gas in either a
cylinder or a piece of equipment such as a refrigerator or air
conditioner. It would not be practicable to seize just the liquid or
gas. However, if the seizable thing is returned to the person from
whom it was seized or is forfeited to the Commonwealth, the container
must also be returned, either at the same time that the seizable thing
is returned or as soon as practicable after the forfeiture.
109. New section 53A is similar to section 51B in that it allows
persons who are not inspectors to accompany an inspector onto premises
to assist with a search. Allowing inspectors to be assisted in the
exercise of their enforcement powers is appropriate as many of the
tests and inspections that need to be carried out require specialist
technical knowledge and expertise which an inspector may not possess.
110. Subsection 53B(1) requires inspectors, when entering premises
under an enforcement warrant, to announce themselves and the fact that
they intend to enter the premises, to produce identification and to
give any person at the premises an opportunity to allow entry. An
inspector is not required to comply with subsection 53B(1), where the
inspector needs to force immediate entry to prevent serious damage to
the environment and/or to ensure that the effective execution of the
search warrant is not frustrated. This exemption is designed to
prevent the destruction of evidence and/or the release of
environmentally harmful substances in an attempt to destroy evidence.
Where an inspector is permitted to immediately enter premises, they
must identify themselves as soon as practicable after entry.
111. Inspectors are required to provide a copy of an enforcement
warrant to the occupier of the premises (or his or her representative)
on which they are executing the warrant.
Subdivision D - General provisions relating to seizure etc (new sections
53D - 53L)
112. This item includes a Subdivision which sets out general provisions
relating to seized material. Currently, the Ozone Act does not include
appropriate procedures for the receipt of seized items, the return or
retention of those items by an inspector and the testing of samples by
an inspector. The purpose of this new Subdivision is to improve the
operation of the Ozone Act by the establishment of an appropriate
framework for handling evidence and other seized material.
113. Section 53D requires an inspector to issue a receipt for seized
items. The receipt must include a summary of sections 53E, 53F, 53G,
53H, 53J, 53K and 53L. Those sections set out the procedures for the
retention, return or disposal of seized items.
114. An inspector must, if requested to do so, provide a copy of seized
documents, films, computer files or the contents of storage devices to
the person from whom they were seized, except where the item seized is
itself a copy of an original - seized under paragraph 53(4)(b) or (c)
- or if possession of the copy by the occupier would constitute an
offence.
115. Section 53F requires an inspector to allow someone who would be
entitled to inspect a book, record or document if they were not in the
possession of an inspector to inspect, at all reasonable times, such
seized books, records or documents.
116. Section 53G provides that items seized by an inspector must be
returned after 60 days or after the reason for seizure no longer
exists, whichever occurs first, unless the seized item is forfeited to
the Commonwealth. An inspector must take reasonable steps to return a
seized item to the person from whom it was seized unless they are
lawfully excused on one of the grounds set out in subsection 53G(2).
The circumstances where an inspector is not required to return a
seized item, include where a magistrate has ordered that the thing be
retained (see new s 53G(2)(b)) and where proceedings in which the
seized item may be used as evidence were instituted before the
inspector was required to return the item and those proceedings have
not been completed (see new s 53G(2)(a)).
117. Section 53H provides that an inspector may apply to a magistrate
for an order that he or she may retain a seized item for up to three
years. An application must be made before the expiry of the period an
inspector is permitted to retain the seized item. Before applying for
an order of this kind, an inspector must take reasonable steps to find
each person that has an interest in the retention of the item and, if
practicable, notify each such person of the proposed application.
118. A magistrate may order that an inspector may retain a seized item
if reasonably satisfied that the retention of the item is necessary
for the purposes of an investigation into a possible criminal offence
or contravention of a civil penalty provision, or to enable evidence
of an offence or a contravention of a civil penalty provision to be
secured for the purpose of criminal or civil proceedings. This
provides inspectors with an opportunity, subject to the scrutiny of a
magistrate, to hold a seized item for an extended period where an
investigation or a court proceeding is likely to continue for longer
than the 60 days an inspector is permitted to retain possession of a
seized item.
119. Section 53J provides for sampling and testing and allows the
regulations to prescribe appropriate procedures. Ozone depleting
substances and synthetic greenhouse gases are most often colourless
and odourless liquids or gasses. Therefore testing of samples is
required to determine the nature of substances that are suspected to
be scheduled substances. This amendment will enable an appropriate
testing framework to be implemented and is based on the testing
provisions of the Fuel Quality Standards Act 2000.
120. Ozone depleting substances and synthetic greenhouse gases are
often stored under pressure. The seizure, movement and/or storage of a
pressure vessel such as a cylinder that is not in a safe condition
presents a serious health and safety risk. Section 53K enables the
Minister or the Secretary to direct an inspector to deal with a
pressure vessel if that vessel constitutes a danger to public health
and safety, including, if directed, to destroy the vessel. The owner
of a pressure vessel that is destroyed can apply to a court for
compensation if the vessel did not contain forfeitable goods.
121. Section 53L enables the Secretary to dispose of a seized item if
the Secretary is unable, despite reasonable efforts, to locate the
person to whom a seized item should be returned. The Secretary may
delegate, by writing, these powers to an SES employee or acting SES
employee.
Subdivision E - Obligations and incidental powers of inspectors (new
section 53M)
122. This item includes a Subdivision which deals with the obligations
and incidental powers of inspectors.
123. Section 53M requires an inspector, seeking voluntary access to
premises, to inform the occupier of the premises that they can refuse
to give consent to entry. The person must voluntarily consent to entry
by an inspector otherwise the entry by the inspector is not lawful.
Item 87 - Section 55
124. This item repeals section 55 and inserts new sections 55 and 55A -
55D into new Subdivision E. The item also includes two new
Subdivisions into Division 1 of Part VIII of the Ozone Act
(Subdivision F - Enforcement Warrants and Subdivision G - Powers of
magistrates).
125. This item repeals section 55 and substitutes a new section 55
which requires an inspector to permit the inspection of a document,
book or record removed or surrendered by a person who would be
entitled to inspect such a thing if it were not in the inspector's
possession.
126. Section 55A requires that documents, records and books removed by
or provided to an inspector, must be returned after 60 days, or after
the reason for the removal or production no longer exists or after a
decision has been made that the thing is not to be used as evidence,
whichever occurs first, unless the item is forfeited to the
Commonwealth. An inspector must take reasonable steps to return an
item to the person from whom it was removed unless they are lawfully
excused on one of the grounds set out in subsection 55A(2). The
circumstances where an inspector is not required to return an item,
include where a magistrate has ordered that the thing be retained (see
new s 55A(2)(b)) and where proceedings in which the item may be used
as evidence were instituted before the inspector was required to
return the item and those proceedings have not been completed (see new
s 55A(2)(a)).
127. Section 55B provides that an inspector may apply to a
magistrate for an order that he or she may retain a book record or
document for up to three years. An application must be made before the
expiry of the period an inspector is permitted to retain the item.
Before applying for an order of this kind, an inspector must take
reasonable steps to find each person that has an interest in the
retention of the item and, if practicable, notify each such person of
the proposed application.
128. A magistrate may order that an inspector may retain a book, record
or document if reasonably satisfied that the retention of the item is
necessary for the purposes of an investigation into a possible
criminal offence or contravention of a civil penalty provision, or to
enable evidence of an offence or a contravention of a civil penalty
provision to be secured for the purpose of criminal or civil
proceedings. This provides inspectors with an opportunity, subject to
scrutiny by a magistrate, to retain an item for an extended period
where an investigation or a court proceeding is likely to continue for
longer than the 60 days an inspector is permitted to retain possession
of an item.
129. New sections 55, 55A and 55B are similar to sections 53F, 53G and
53H which apply to the return of seized items. The effect of these
amendments is to ensure a similar process applies to the return of
items obtained by inspectors regardless of whether the item was seized
under enforcement powers, removed under monitoring powers or
voluntarily produced by the owner of the item.
130. Access to evidence by inspectors on premises may require the use
of specialist electronic equipment by trained operators. To prevent
such information being destroyed, altered or otherwise interfered with
while such specialist assistance is obtained, section 55C allows an
inspector to secure equipment that they believe contains evidential
material or other information relevant to ascertaining compliance with
the Ozone Act or regulations. A notice must be given to the occupier
of the premises (or his or her representative) that this step has been
taken. The equipment can be secured for up to 24 hours, until the
equipment has been operated by the expert or until the expiration of
an extension order granted by a magistrate.
131. The Commonwealth must compensate the owner of any equipment, or,
the user of any data or program, that is damaged or corrupted as a
result of the exercise of the powers in section 55C. The damage must
occur because insufficient care was exercised in selecting the expert
or the expert exercised insufficient care in operating the equipment.
If the Commonwealth and the owner cannot agree on compensation, the
owner may apply to a court for reasonable compensation as the court
may determine.
Subdivision F - Enforcement Warrants (new sections 55E - 55G)
132. This item includes a Subdivision which relates to enforcement
warrants.
133. Enforcement warrants may be issued by a magistrate under
section 55E. An enforcement warrant authorises an inspector to enter
premises and exercise the enforcement powers in section 53. In urgent
cases, an application for such a warrant may be made by telephone, fax
or other electronic means (section 55F).
134. Section 55G creates a number of offences relating to the
application for and execution of an enforcement warrant by an
inspector. Each offence carries a maximum penalty of imprisonment for
two years. Currently, the Ozone Act does not include offences relating
to warrants. These additional offences fill a gap in the current
legislation and are designed to deter inspectors from misleading
magistrates when applying for warrants and possibly misusing the
enhanced enforcement powers.
Subdivision G - Powers of magistrates (new section 55H)
135. Section 55H is a standard provision which provides that powers
conferred on magistrates by the Ozone Act are conferred on them
personally, not as a court or members of a court.
Item 88 - Section 57
136. The item repeals section 57 of the Ozone Act and substitutes a new
section 57 which expands the definition of forfeitable goods to
include, goods in respect of which, a person has been convicted of a
specified offence against the regulations, or goods in respect of
which a civil penalty order has been made against a person or goods in
respect of which a person has contravened certain provisions of the
Ozone Act or regulations. The extension of the definition of
forfeitable goods is necessary given the increase in the number of
criminal offences in the regulations since 2005 and the inclusion of
civil penalties and an infringement notice scheme into the Ozone Act.
Item 89 - Before section 58
137. This item is a machinery provision that creates Subdivision B of
Division 3.
Item 90 - Section 58
138. This item makes a minor formatting change required as a
consequence of item 92.
Item 91 - Section 58, and Item 92 - At the end of section 58
139. These items amend section 58 of the Ozone Act. The purpose of
these amendments is to expand the circumstances in which goods are
automatically forfeited to the Commonwealth, to include goods in
respect of which a person has been convicted of an offence against the
regulations or has been the subject of a civil penalty order. These
amendments are required as a consequence of item 88.
Item 93 - After section 60
140. This item inserts Subdivision C into Division 3 of Part VIII of
the Ozone Act. The purpose of these amendments is to provide a further
procedure by which goods may be forfeited to the Commonwealth in
addition to those in sections 58 and 59 of the Ozone Act. The
additional forfeiture provisions allow for goods to be forfeited to
the Commonwealth through an administrative process. This process is
designed primarily to deal with situations where the provisions of
section 58 and 59 of the Ozone do not apply, such as where an
infringement notice is issued for a contravention of the Ozone Act or
regulations. As payment of an infringement notice is not an admission
of guilt and in other circumstances a court may not have determined
whether an offence has been committed or civil penalty provision
contravened, due process is required to determine if goods seized as
forfeitable goods are, in fact, forfeitable goods.
141. Where an inspector seizes goods under section 53 and believes on
reasonable grounds that the seized goods are forfeitable goods as
defined in section 57, the inspector may issue a forfeiture notice to
the owner of the goods or, if the owner cannot be identified, the
person from whom they were seized. The form and content requirements
of the forfeiture notice are set out in subsection 60A(2).
142. The owner of the goods or the person from whom they were seized
may apply to a court for an order that all or some of the seized goods
are not forfeitable goods. Where an application is made to a court,
the court must make an order or refuse to make an order that the goods
are not forfeitable goods.
143. If a court orders that some or all of the goods are not
forfeitable, the inspector must take reasonable steps to return the
goods to the applicant unless they are lawfully excused on one of the
grounds set out in subsection 60B(5). The circumstances where an
inspector is not required to return goods that are not forfeitable
include, where the return of the goods would cause an imminent risk of
death, serious illness, serious injury or serious damage to the
environment (see new s 60B(5)(b)) or where an inspector is otherwise
authorised to retain or destroy the goods (see new s 60B(5)(c)).
144. Section 60C provides that goods are forfeitable if an application
is not made to a court within 60 days of the giving of the forfeiture
notice or, if an application is made to a court, the court refuses to
make an order that the goods are not forfeitable.
145. Section 60D enables a person to apply to a court for compensation
where goods are seized and forfeited and either Division 1 of Part
VIII of the Ozone Act was not complied with in relation to the
seizure, or, the goods were not forfeitable goods.
146. Section 60E provides that forfeited goods become the property of
the Commonwealth.
Item 94 - Section 61 and Item 95 - Section 61
147. These items make minor technical amendments to section 61 as a
result of the amendments in items 96 and 93.
Item 96 - At the end of section 61
148. This item amends section 61 of the Ozone Act. The effect of this
amendment is that goods forfeited to the Commonwealth must not be
sold. This provision gives legislative effect to the principle that
the Commonwealth must not be seen to be profiting through the
forfeiture of goods.
Item 98 - Subsection 63(1)
149. The purpose of this amendment is to extend the offence of
obstructing inspectors to include obstruction of people assisting
inspectors. This amendment is required by the inclusion of sections
51B and 53A (see items 85 and 86) which permit inspectors to be
assisted when exercising their monitoring and enforcement powers.
Item 97 - Subsection 62(1)
150. This item amends subsection 62(1) of the Ozone Act to extend the
offence of making a false or misleading statement in an application to
applications under both the Ozone Act and the regulations. This
reflects that applications are now made under the regulations for
refrigeration and air conditioning and fire protection industry
permits.
Item 99 - At the end of Part VIII
151. This item inserts three new Divisions into Part VIII of the Ozone
Act (Division 5 - Infringement notices, Division 6 - Ancillary
contravention of civil penalty provisions and Division 7 - Civil
penalty orders).
Division 5 - Infringement notices (new section 65AA)
152. This item includes a new Division which provides for an
infringement notice scheme.
153. Section 65AA states that a person alleged to have committed a
certain specified offence or to have contravened a specified civil
penalty provision, may pay a penalty to the Commonwealth as an
alternative to prosecution or civil penalty proceedings as provided
for in the regulations.
154. The specified penalty must not exceed one-fifth of the maximum fine
or pecuniary penalty that a court could impose. This restriction is in
line with existing Commonwealth practices and guidelines.
Division 6 - Ancillary contravention of civil penalty provisions (new
section 65AB)
155. Subsection 65AB(1) provides that a person must not attempt to
contravene a civil penalty provision, aid, abet, counsel or procure
another to contravene a civil penalty provision, induce another to
contravene a civil penalty provision or conspire with others to effect
a contravention of a civil penalty provision. Subsection 65AB(1) is a
civil penalty provision.
Division 7 - Civil penalty orders (new sections 65AC - 65AM)
156. This item includes a new Division which provides a framework for
civil penalty orders.
157. These provisions allow the Minister to apply to a court (including
the Federal Court of Australia or the Supreme Court of a State or
Territory) for an order that the person who has contravened a civil
penalty provision pay a pecuniary penalty. Amendments elsewhere in
this Bill establish civil penalty provisions.
158. The provisions establishing the civil penalty regime include
protections against multiple civil, or both civil and criminal action
being taken against a person, consistent with the legal principle of
double jeopardy.
159. A person is not liable to have a civil penalty order if, in
relation to the contravention of a civil penalty provision, the person
was acting under a mistake of fact.
Item 100 - At the end of paragraph 65C(1)(b)
160. This item makes a minor technical amendment to paragraph 65C(1)(b)
of the Ozone Act. The effect of this amendment is that amounts
received as licence fees under the regulations will be credited to the
Ozone Protection and SGG Account.
Item 101 - At the end of section 65C
161. This item adds subsections 65C(2) and (3) to the Ozone Act. This
amendment establishes a framework for crediting notional payments
between Commonwealth agencies (within the meaning of the Financial
Management and Accountability Act 1997) to the Ozone Protection and
SGG Account. Currently payments between such agencies cannot be
credited to the Ozone Protection and SGG Account.
Item 102 - After paragraph 65D(c)
162. This item inserts paragraph 65D(ca) into the Ozone Act. This
amendment clarifies that money in the Ozone Protection and SGG Account
can be used to fund research relating to ozone depleting substances
and synthetic greenhouse gases. This research is necessary to
demonstrate the need for, establish and improve the design of
activities that give effect to the purposes of the Ozone Act.
Item 103 - Subsection 67A(1)
163. This item amends the Minister's power to delegate powers and
functions to include the Minister's powers and functions under the Act
and the regulations. This amendment is necessary because the Minister
now has significant functions under the regulations in relation to the
refrigeration and air conditioning and fire protection industry permit
regime. The effect of this amendment is to allow the Minister to
delegate those functions as appropriate.
Item 104 - Subsection 67A(2)
164. This item makes a minor technical amendment to subsection 67A(2).
The effect of this amendment is that the Minister cannot delegate his
or his powers under new section 53K. Section 53K enables the Minister
to direct an inspector to deal with a pressure vessel which is a risk
to public health or safety (see item 86).
Item 105 - After section 69B
165. This item inserts new sections 69C, 69D, 69E and 69F into the
Ozone Act.
166. Sections 69C and 69D vest State and Territory courts with
jurisdiction in relation to matters arising under the Ozone Act or the
regulations. This amendment is required as a consequence of other
amendments in this Bill which enable people to apply to State or
Territory courts in relation to compensation, forfeitable goods and
civil penalties.
167. Section 69E deals with compensation for acquisition of property.
The purpose of this provision is to ensure that people receive just
terms compensation, as required by section 51(xxxi) of the
Constitution, if the operation of the Ozone Act or regulations results
in the acquisition of property. This provision is modelled on similar
provisions in the Historic Shipwrecks Act 1976 and is commonly used in
Commonwealth legislation.
168. Section 69F empowers the Minister to make arrangements with the
Minister of a State, the Australian Capital Territory, the Northern
Territory or the Administrator of Norfolk Island in relation to the
performance of functions by a magistrate. A copy of each instrument by
which an arrangement is made, varied or revoked, must be published in
the Gazette but is not a legislative instrument.
Item 106 - Section 70 and Item 107 - Section 70
169. These items increases the maximum penalty that can be prescribed
for offences against the regulations to 50 penalty units for natural
persons and 250 penalty units for bodies corporate. Currently the
limit on penalties that can be prescribed by the regulations is set at
specified monetary amounts. Setting the limit by reference to penalty
units means that the penalty will increase (or decrease) over time
with a change in the value of a penalty unit ensuring the penalties
remain sufficiently high to deter offences.
Item 108 - After subclause 10(1) of Schedule 4
170. This item, read in conjunction with item 2 of Schedule 2 of this
Bill, provide that equipment pre-charged with hydrochlorofluorocarbon
(HCFC) refrigerant, or, designed to operate on HCFC refrigerant, must
not be manufactured or imported unless provided for the in
regulations. This allows for the ongoing staged phase-out of HCFC
using equipment in Australia to complement the staged phase-out of the
import of bulk HCFC that is needed to service this equipment.
Item 109 - Transitional - declarations under subsection 44(3) of the Ozone
Protection and Synthetic Greenhouse Gas Management Act 1989, Item 110 -
Transitional - declarations under subsection 44(6) of the Ozone Protection
and Synthetic Greenhouse Gas Management Act 1989, Item 111 - Transitional -
declarations under subsection 45(3) of the Ozone Protection and Synthetic
Greenhouse Gas Management Act 1989 and Item 112 - Transitional -
declarations under subsection 45(3B) of the Ozone Protection and Synthetic
Greenhouse Gas Management Act 1989
171. These items provide for transitional matters as a consequence of
the inclusion of civil penalties into the Ozone Act. The effect of
these provisions is that where an instrument made under subsections
44(3), 44(6), 45(3) or 45(3B) of the Ozone Act is still in effect,
references in those instruments to the criminal offence provisions of
subsections 44(1), 44(5), 45(1) and 45(3A) are to be read as including
a reference to the mirror civil penalty provisions in subsection
44(2A), 44(5B), 45(2A) and 45(3AB). The objective of this provision is
to ensure that new instruments will not need to be made in order to
cover the mirror civil penalty provisions inserted by this Bill.
Item 113 - Application - reports under section 46 of the Ozone Protection
and Synthetic Greenhouse Gas Management Act 1989
172. This item clarifies the application of the amendments of section
46 of the Ozone Act made by items 71 - 76 of this Schedule. These
amendments will apply in relation to a quarter starting after the
commencement of this item.
Item 114 - Application - licence periods of pre-charged equipment
licences,
173. This item clarifies the application of the amendments of section 19 of
the Ozone Act made by item 28 of this Schedule. These amendments will
apply in relation to pre-charged equipment licences granted after the
commencement of this item.
Item 115 - Application - appointment of inspectors
174. This item clarifies the application of subsection 49(3) of the
Ozone Act as inserted by item 79 of this Schedule. Subsection 49(3)
will apply in relation to an appointment made after the commencement
of this item.
Item 116 - Transitional - books, records or documents seized, removed or
produced before commencement
175. This item provides for transitional matters related to the repeal
of section 55 of the Ozone Act by item 87 of this Schedule. The effect
of this provision is that section 55 of the Ozone Act, as in effect
prior to its repeal, continues to apply to books, records or documents
seized, removed or produced under the Ozone Act before the
commencement of this item.
Item 117 - Transitional - things seized before commencement
176. These items provide for transitional matters related to the repeal
of subsections 52(6) and (7) of the Ozone Act by item 86 of this
Schedule. The effect of this provision is that subsections 52(6) and
(7) of the Ozone Act, as in effect prior to repeal by this Schedule,
continues to apply to things seized under the Ozone Act before the
commencement of this item.
Item 118 - Transitional - forfeitable goods
177. This item provides that the definition of forfeitable goods as
amended by item 88 of this Schedule applies to a contravention that
occurred before, at or after commencement of this item.
Schedule 2 - OTHER AMENDMENTS
Item 1 - Paragraph 10(1)(a) of Schedule 4, Item 2 - Paragraph 10(1)(b) of
Schedule 4 and Item 3 - At the end of paragraph 10(1)(c) of Schedule 4
178. These items amend Schedule 4 of the Ozone Act to extend the
prohibition on the import or manufacture of refrigeration or air
conditioning equipment that contains or is designed to run on a
chlorofluorocarbon (CFC) refrigerant to cover refrigeration or air
conditioning equipment containing or designed to run on an HCFC
refrigerant.
179. These amendments allow ongoing staged phase-out of HCFC using
equipment in Australia to complement the staged phase-out of the
import of bulk HCFC that is needed to service this equipment.
180. The new paragraph 10(1)(b) also provides that the ban on equipment
designed to operate on CFC or HCFC refrigerant applies where the
equipment is also designed to operate using another substance. This
amendment is to close a loophole which allowed equipment designed to
operate on CFC to be retrofitted with another substance and a claim to
be made that it did not fit into the category of "the equipment may
only operate by using a CFC refrigerant". Such retrofitting most often
resulted in equipment that was not fit for purpose, not as energy
efficient as it was designed to be and unsafe for the end user due to
the higher operating pressures of the substituted refrigerants.