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PETROLEUM (SUBMERGED LANDS) AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 346
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 346
Issued by the Authority of the Minister for Industry, Tourism and Resources
Petroleum (Submerged Lands) Act 1967
Petroleum (Submerged Lands) Amendment (Application of Criminal Code) Regulations 2001 (No. 1)
Section 157 of the Petroleum (Submerged Lands) Act 1967 ("the Act") provides that the Governor-General may make Regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Act provides the legal framework for the exploration for, and the production of, petroleum from those parts of Australia's continental shelf and Exclusive Economic Zone which are under Commonwealth jurisdiction. The Act is administered jointly by the Commonwealth, State and Northern Territory Governments.
The primary purpose of the Regulations was to amend the criminal offence provisions in existing Regulations under the Act, pursuant to the application of Chapter 2 of the Criminal Code to all criminal offence provisions in existing Commonwealth laws. The Criminal Code is set out in the schedule to the Criminal Code Act 1995. Its purpose is to codify the general principles of criminal responsibility under laws of the Commonwealth. The Criminal Code has been applied to all criminal offence provisions within existing Commonwealth laws from 15 December 2001.
The Regulations which were amended comprise the:
• Petroleum (Submerged Lands) (Management of Environment) Regulations 1999;
• Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996;
• Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations; and
• Petroleum (Submerged Lands) Regulations 1985.
The amendments have ensured that, following application of the Criminal Code from 15 December 2001, relevant provisions in existing Regulations under the Act will operate as originally intended and, also, in, a manner consistent with the Criminal Code. If the Regulations had not been amended then, following application of the Criminal Code, the interpretation of existing offence provisions might have changed.
The amendments have:
• expressly identified where an offence is one of strict liability to ensure that offences previously interpreted as strict liability continue to be interpreted as such after application of the Criminal Code;
• restructured criminal offence provisions containing -a defence of reasonable excuse, to avoid the defence being mistakenly interpreted as an element of the offence;
• specified where a defendant bears an evidential burden in respect of a defence;
• reconstructed offences to better identify the physical elements of conduct and circumstance or result;
• rectified deficiencies in some of the criminal offence provisions; and
• rectified a number of ambiguities.
All States and the Northern Territory were consulted about the nature of the Regulations.
Details of the Regulations are set out in the Attachment.
The Regulations commenced on gazettal.
ATTACHMENT
Petroleum (Submerged Lands) Amendment (Application of Criminal Code) Regulations 2001 (No. 1)
Regulation 1 - Name of Regulations
This Regulation provides the title of the Regulations.
Regulation 2 - Commencement
This Regulation provides for the Regulations to commence on gazettal.
Regulation 3 - Amendments of Petroleum (Submerged Lands) (Management of Environment) Regulations 1999
This Regulation provides that the amendments to the Petroleum (Submerged Lands) (Management of Environment) Regulations 1999 are as set out in Schedule 1.
SCHEDULE 1 AMENDMENTS
Item [1] - Subregulation 6(1)
This item substitutes subregulations 6(1) and (1A) for subregulation 6(1). Former subregulation 6(1) provided that an operator must not carry out an activity unless there is an environment plan in force for the activity. New subregulation 6(1) makes it clear that the onus of proof to establish whether an environment plan is in force for the activity rests with the prosecution, not with the defendant. In note 3 to subregulation 6(1) there was a reference to repealed section 131 of the Act. This has been replaced by a reference to section 4K of the Crimes Act 1914 which is now the applicable provision dealing with continuing offences. Note 4 of the former subregulation, which drew attention to regulation 38, was not retained in the new subregulation. Regulation 38 was omitted (see item [13]), as the global application of strict liability to offences in the Regulations has been superseded by provisions which apply strict liability to individual provisions. The new subregulation retains the penalty of 80 penalty units.
Subregulation 6(1A) applies strict liability to the offence in subregulation 6(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code.
Strict liability is defined in section 6.1 of the Criminal Code and provides that, where an offence is intended to be one of strict liability, it should be identified as such in the statute. Where strict liability applies to an element of an offence or to the complete offence, there is a defence of mistake of fact available under section 9.2 of the Criminal Code. Section 9.2 provides that the person is not criminally responsible for an offence of this nature if, at the time of the conduct, the person is under a mistaken but reasonable belief about a relevant fact and, had that belief been true, the conduct would not constitute an offence. If there is a mistake of fact, the evidential burden of proof is on the defence. This means that the defendant must adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Item [2] - After subregulation 7(1), including the penalty
This item inserts subregulation 7(1A), which applies strict liability to an offence against subregulation 7(1) to preserve the status of this provision. The standard note, referring to section 6.1 of the Criminal Code that governs strict liability, is added after this provision. An explanation of strict liability appears under item [1], above.
Item [3] - Subregulation 8(1)
This item substitutes subregulations 8(1) and (1A) for subregulation 8(1). Substituted subregulation 8(1) clarifies that the onus of proof rests with the prosecution on the question of whether a person is carrying out activities and whether prescribed effects or risks are not provided for in an environment plan. The new subregulation retains the penalty of 80 penalty units.
Subregulation 8(1A) applies -strict liability to the offence in subregulation 8(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [4] - Regulation 26
This item substitutes a new regulation for the former regulation 26.
Former regulation 26 set out the requirements for giving initial notice and written reports of reportable incidents to the regulator. It also specified the requirements for keeping records of such reports and records of the details of corrective action taken. The new regulation modifies these requirements, to ensure harmony with the Criminal Code and to improve the operation of the offence provision. The timeframes and trigger points for provision of notice and written reports are modified. The former provisions specified that notices and reports were to be provided "as soon as possible" (or similar). The inclusion of such phrases requires the prosecution to prove the defendant did not do something as soon as possible. These phrases could also result in a multiple shifting of the burden of proof As what is possible is generally only within the defendant's knowledge, it might have been difficult to achieve a -prosecution. These provisions have therefore been modified by specifying a maximum timeframe for communication with the regulator after the occurrence of a reportable incident. .Where timeframes have been made explicit, provision is made for the defendant to put forward a defence to the offence.
New subregulation 26(1) replaces former subregulations 26(1) and (2). The new subregulation provides that an operator must give notice, orally or in writing, of a reportable incident as soon as practicable, but within two hours, after the first occurrence of the incident or, if the incident was not detected by the operator at the time of its first occurrence, then within two hours of its detection by the operator. This latter element was added to enable the offence provision to reflect that there might be a lapse of time between the occurrence of a reportable event and its detection. The new subregulation retains the penalty of 40 penalty units.
New subregulation 26(2) provides that it is a defence to a prosecution for an offence against subregulation 26(1) if the operator has a reasonable excuse. This item also includes a note after subregulation 26(2) that specifies that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 26(3) applies strict liability to the offence in subregulation 26(1). This 'preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
New subregulation 26(4) replaces former subregulation 26(3). The former subregulation provided that an operator must give a written report of the incident either within a reasonable period specified by the regulator, if one is specified, or, in any other case, as soon as practicable after the first occurrence of the incident. The new subregulation provides that a written report must be given either as soon as practicable, but within three days of the prescribed trigger point or, if the regulator (within those three days) specifies another period in writing, then within that period. This places a limit on the timeframe in which a written report is to be provided unless, within that timeframe, the regulator specifies a longer or shorter period for the provision of the report.
Commonwealth criminal law policy provides that offences should be framed so that there is no doubt about what the law requires and of the consequences for a person of any contravention of the law. The applicable penalty should also appear at the end of each offence. To conform with this policy, a penalty of 40 penalty units has been inserted at the foot of new subregulation 26(4). This penalty conforms with the penalty for a similar offence under the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996.
New subregulation 26(5) provides that it is a defence to a prosecution for an offence against subregulation 26(4) if the operator has a reasonable excuse. The note to subregulation 26(5) provides that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 26(6) applies strict liability to the offence in subregulation 26(4). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
New subregulation 26(7) replaces former subregulation 26(4) without materially altering the matters prescribed for inclusion in the written report.
New subregulation 26(8) replaces former subregulation 26(5). The new subregulation clarifies that the operator must keep a record of reports of each reportable incident and of the details, in relation to each incident (rather than in relation to each report), of any corrective action the operator has taken. The new subregulation retains the penalty of 30 penalty units.
New subregulation 26(9) applies strict liability to the offence in subregulation 26(8). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [5] - After subregulation 27(1), including the penalty
This item inserts subregulation 27(1A), which applies strict liability to the offence in subregulation 27(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [6] - Paragraph 27(2)(f)
To reflect amendments made under item [4], this item substitutes a cross-reference to subregulation 26(8), in place of the cross-reference to former subregulation 26(5).
Item [7] - After subregulation 28(1), including the penalty
This item inserts subregulation 28(1A), which applies strict liability to the offence in subregulation 28(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [8] - After subregulation 29(1), including the penalty
This item inserts subregulation 29(1A), which applies strict liability to the offence in subregulation 29(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [9] - Subregulation 32(1)
This item substitutes subregulations 32(1), (1A) and (1B) for former subregulation 32(1).
The former subregulation 32(1) required the operator of an activity to notify the Designated Authority promptly, in writing, of the appointment of an agent and the agent's contact details, of any change of agent, or of any change of name or contact details of the operator or the operator's agent.
New subregulation 32(1) requires these notifications to be provided "within seven days" rather than "promptly". The purpose of this change is to place a limit on the timeframe in which action is required to occur.
Commonwealth criminal law policy provides that offences should be framed so that there is no doubt about what the law requires and of the consequences for a person of any contravention of the law. The applicable penalty should also appear at the end of each offence. To conform with this policy, a penalty of 40 penalty units was inserted at the foot of new subregulation 32(1).
Subregulation 32(1A) provides that it is a defence to a prosecution for an offence against subregulation 32(1) if the operator has a reasonable excuse. This item also includes a note after subregulation 32(1A), which specifies that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
Subregulation 32(1B) applies strict liability to the offence in subregulation 32(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [10] - Subregulation 32(2), at the foot
For the same reasons set out in item [9], above, concerning placement of penalty, this item inserts the penalty of 40 penalty units at the foot of subregulation 32(2).
Item [11] - After subregulation 32(2)
This item inserts subregulation 32(2A), which applies strict liability to the offence in subregulation 32(2). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [12] - After subregulation 32(3), including the penalty and note
This item inserts subregulation 32(4), which applies strict liability to the offence in subregulation 32(3). This preserves the status of this provision. A note' on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [13] - Regulation 38
This item omits former regulation 38, which stated that an offence against these Regulations was a strict liability offence. As each offence to which strict liability applies has to be identified as such in the Regulations, a global provision of the type previously provided by regulation 38 is inappropriate, Amendments detailed. Under other items in this Schedule specifically apply strict liability to each individual offence.
Regulation 4 - Amendments of Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996
This Regulation provides that the amendments to the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996 are as set out in Schedule 2.
SCHEDULE 2 AMENDMENTS
Item [1] -Reader's Guide, under heading "Analysis of Part 4", 4th paragraph
This item substitutes a new fourth paragraph under the heading "Analysis of Part 4" in the Reader's Guide to the Regulations. This paragraph previously explained to the reader the provisions of regulations 38 and 39. As regulation 38 was repealed by item [25], below, the new paragraph contains an explanation of the provisions of regulation 39 only.
Item [2] - Subregulations 29(1) and (2)
This item substitutes new subregulations for subregulations 29(1) and 29(2). Former subregulation 29(1) provided that, except with the consent in writing of the regulator, the operator or titleholder of a facility must not construct or install the facility in a way that is contrary to the "Consent to construct and install" or the "Safety Case in force for the facility". The use of the words "except with the consent in writing of the Designated Authority" constituted an exception within the offence provision. This was capable of being interpreted as part of the physical elements of the offence. In order to avoid such an interpretation, the exception is not retained in new subregulation 29(1) but is recreated in new subregulation 29(1 A).
New subregulation 29(1) provides that the operator or titleholder of a facility must not construct or install the facility in a way that is contrary to the "Consent to construct and install" or the "Safety Case in force for the facility". The new subregulation retains the penalty of 80 penalty units. A note about the meaning of the phrase "Safety Case in force for the facility" is retained, and a note about the meaning of the phrase "Consent to construct and install" is added.
New subregulation 29(1A) provides that it is a defence to a prosecution for an offence against subregulation 29(1) if the operator or titleholder has the consent in writing of the regulator. This item also includes a note after subregulation 29(1A) specifying that the defendant bears an evidential burden in relation to the question whether he or she had the consent in writing. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 29(1B) applies strict liability to the offence in subregulation 29(1). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Former subregulation 29(2) provided that, except with the consent in writing of the regulator, the operator of a facility must not operate, remove, dismantle or decommission the facility in a way that is contrary to the "Consent to use the facility" or the "Safety Case in force for the facility". As with former subregulation 29(1), the words "except with the consent in writing of the Designated Authority" constituted an exception within the offence provision. This was capable of being interpreted as part of the physical elements of the offence. In order to avoid such an interpretation, the exception is not retained in new subregulation 29(2) but is recreated in new subregulation 29(2A).
New subregulation 29(2) provides that the operator of a facility must not operate, remove, dismantle or decommission the facility in a way that is contrary to the "Consent to use the facility" or the "Safety Case in force for the facility". The new subregulation retains the penalty of 80 penalty units and adds a note about the meaning of certain phrases used in the subregulation.
New subregulation 29(2A) provides that it is a defence-to a prosecution for an offence against subregulation 29(2) if the operator has the consent in writing of the regulator. This item also includes a note after subregulation 29(2A), specifying that the defendant bears an evidential burden in relation to the question whether he or she had the consent in writing. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 29(2B) applies strict liability to the offence in subregulation 29(2). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, Above.
Item [3] - After subregulation 29(3), including the penalty and note
This item inserts subregulation 29(3A), which applies strict liability to the offence in subregulation 29(3). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [4] - Subregulation 29(5), after the penalty
T his item inserts two notes. Subregulation 29(5) provides that a person must not, in an adjacent area, make a significant change to the structure of a facility except in accordance with the provisions in the "Safety Case in force for the facility". Note 1, inserted for comprehensiveness, refers the reader to subregulation 3(1) for the meaning of the phrase "Safety Case in force for the facility". For clarity, this item also inserts a note that a defendant bears an evidential burden in relation to the question whether the change is in accordance with the provisions in the "Safety Case in force for the facility'. It also draws attention to the provisions of section 13.3 of the Criminal Code.
Item [5] - After subregulation 29(5), including the penalty
This item inserts subregulation 29(6), which applies strict liability to the offence in subregulation 29(5). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [6] - After subregulation 30(1), including the penalty
This item inserts subregulation 30(1A), which applies strict liability to the offence in subregulation 30(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [7] - After subregulation 30(4), including the penalty
This item inserts subregulation 30(4A), which applies strict liability to the offence in subregulation 30(4). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the, Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [8] - After subregulation 30(5), including the penalty
This item inserts subregulation 30(5A), which applies strict liability to the offence in subregulation 30(5). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [9] - Subregulation 30(7)
This item omits the phrase "For the purpose of enabling documents to be made available in accordance with subregulation (5)," and substitutes the phrase "So that documents can be made available under subregulation (5),". This change clarifies that the words are physical elements of circumstance in the offence provision.
Item [10] - After subregulation 30(7), including the penalty
This item inserts subregulation 30(7A), which applies strict liability to the offence in subregulation 30(7). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code, An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [11] - After subregulation 30(9), including the penalty
This item inserts subregulation 30(9A), which applies strict liability to the offence in subregulation 30(9). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [12] - Subregulation 31 (1)
This item substitutes subregulations 31(1), (1A), (1B) and (1C) for former subregulation 31(1). The former subregulation 31(1) specified the requirements for giving initial notice to an inspector of a prescribed significant accident or incident. The new subregulations have modified the timeframes and trigger points for provision of notice to ensure harmony with the Criminal Code and to improve the operation of the offence provision. Where timeframes have been made explicit, provision is made for the defendant to raise a defence to the offence.
New subregulation 31(1) provides that the operator of a facility must give the initial notice in accordance with subregulation 31(1A). The new subregulation retains the penalty of 40 penalty units.
New subregulation 31(1 A) provides that the initial notice may be oral or written and must be provided at the earliest practicable opportunity, but within two hours, after the first occurrence of the accident or incident or (if it was not detected by the operator when it first occurred) of its detection by the operator. This contrasts with the former provision which required that the notice be given at the earliest practicable opportunity after the occurrence of the accident or incident. This extra element has been added to reflect that there might be a lapse of time between the occurrence of a reportable event and its detection. The phrase "at the earliest practicable opportunity" presented the same difficulties in achieving a prosecution as are outlined, above, (item [4], Schedule 1) in relation to the phrase "as soon as possible". This is remedied by specifying a maximum timeframe of two hours for the giving of notice. The new subregulation provides, as did the former subregulation 31 (1), that the notice must contain all material details concerning the accident or incident that are at that time reasonably available to the operator.
New subregulation 31(1B) provides that it is a defence to a prosecution for an offence against subregulation 31(1) if the operator has a reasonable excuse. This item also includes a note after subregulation 31(1B) specifying that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 31(1C) applies strict liability to the offence in subregulation 31 (1). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [13] - Subregulation 31(2)
This item substitutes subregulations 31(2), (2A), (2B) and (2C) for former subregulation 31(2). The former subregulation 31(2) provided that, within a reasonable time specified by the inspector or, if no such time is specified, as soon as practicable after the occurrence of a prescribed accident or incident, the operator must give a report in writing to the inspector setting out prescribed facts and circumstances. For the same reasons as set out in item [12] of this Schedule and item [4] of Schedule 1, the new subregulations have modified the timeframes and trigger points for the provision of' notice to ensure harmony with the Criminal Code and to improve the operation of the offence provision. Where timeframes have been made explicit, provision is made for the defendant to raise a defence to the offence.
New subregulation 31(2) provides that an operator must give a report in writing to the inspector of a prescribed accident or incident in accordance with subregulation 31(2A) and 31(2B). The new subregulation retains the penalty of 40 penalty units.
New subregulation 31(2A) specifies that the report must be provided as soon as practicable, but within three days of the prescribed trigger point or, if the regulator (within those three days) specifies another period in writing, then within that period. This places a prescribed .limit on the timeframe in which a written report is to be provided unless, within that timeframe, the regulator specifies a longer or shorter period for the provision of the report.
New subregulation 31(2B) provides, as did the former subsection 31(2), that the report must contain all material facts and circumstances concerning the accident or incident that the operator is aware of, or is able, by reasonable search and enquiry, to find out.
New subregulation 31(2C) provides that it is a defence to a prosecution for an offence against subregulation 31(2) if the operator has a reasonable excuse. This item also includes a note after subregulation 31(2C) specifying that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 31(2D) applies strict liability to the offence in subregulation 31(2). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1], above.
Item [14] - After subregulation 31(3), including the penalty
This item inserts subregulation 31(3A), which applies strict liability to the offence in subregulation 31(3). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [15] - Subregulation 31(4)
This item substitutes subregulations 31(4), (4A) and (4B) for former subregulation 31(4). The former subregulation 31(4) required the operator of a facility, as soon as practicable after the end of each calendar month, to submit to the inspector a summary in writing of all deaths of persons on the facility and all injuries to persons on the facility, other than minor injuries not requiring treatment or requiring only treatment in the nature of first aid.
New subregulation 31(4) requires the written summary to be provided "as soon as practicable, but not later than 15 days, after the end of each calendar month". The purpose of this change is to place a limit on the timeframe in which the report is to be provided. The new subregulation retains the same penalty as the former subregulation of 30 penalty units.
Subregulation 31(4A) provides that it is a defence to a prosecution for an offence against subregulation 31(4) if the operator has a reasonable excuse. This item also includes a note after subregulation 31(4A) specifying that the defendant bears an evidential burden in relation to the question whether he or she has a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 31(4B) applies strict liability to the offence in subregulation 31(4). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [16] - After subregulation 32(1), including the penalty
This item inserts subregulation 32(1A), which applies strict liability to the offence in subregulation 32(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [2] of Schedule 1, above.
Item [17] - Subregulation 32(2), note
This item substitutes two notes for the previous note under subregulation 32(2). Subregulation 32 concerns the possession and control of drugs and intoxicants on a facility. The original note referred the reader to subregulation 3(1) for the meaning of the phrase "Safety Case in force for the facility", which is used in subregulation 32(2). This note is now numbered note 1. The new note 2 states that a defendant bears an evidential burden in relation to the matters mentioned in subregulation 32(2). It also draws attention to the provisions of section 13.3 of the Criminal Code.
Item [18] - Subregulation 3 2 (3), at the foot
This item inserts two new notes under subregulation 32(3). This subregulation provides that it is a defence to the offence in paragraph (b) of subregulation 32(1) that the person had the intoxicant in his or her possession or under his or her control in accordance with the "Safety Case in force for the facility". Note 1 refers the reader to subregulation 3(1) for the meaning of the phrase "Safety Case in force for the facility" which is used in the subregulation. Note 2 states that a defendant bears an evidential burden in relation to the matters mentioned in subregulation 32(3). It also draws attention to the provisions of section 13.3 of the Criminal Code.
Item [19] - After subregulation 33(1), including the penalty
This item inserts subregulation 33(1A), which applies strict liability to the offence in subregulation 33(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [20] - Subregulation 34(1), at the foot
Commonwealth criminal law policy provides that offences should be framed so that there is no doubt about what the law requires and of the consequences for a person of any contravention of the law. The applicable penalty should also appear at the end of each offence. To conform with this policy, a penalty of 10 penalty units was inserted at the foot of subregulation 34(1). This item also inserts a note, referring the reader to subregulation 3(1) for the meaning of the phrase "Safety Case in force for the facility", which is used in the subregulation.
Item [21] - After subregulation 34(1)
This item inserts subregulation 34(1A), which applies strict liability to the offence in subregulation 34(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [22] - After subregulation 34(2), including the penalty
This item inserts subregulation 34(3), which applies strict liability to the offence in subregulation 34(2). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [23] - After subregulation 35(1), including the penalty
This item inserts subregulation 35(1A), which applies strict liability to the offence in subregulation 35(1). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [24] - Subregulation 35 (2), at the foot
This item inserts a note at the foot of subregulation 35(2). Subregulation 35(1) provides that it is an offence to interfere with the site of an accident before an inspector has completed investigation of the site. Subregulation 35(2) provides defences in proceedings for an offence under subregulation 35(1) in prescribed circumstances. For clarity, the note states that a defendant bears an evidential burden in relation to the matters mentioned in subregulation 35(2). It also draws attention to the provisions of section 13.3 of the Criminal Code.
Item [25] - Regulation 38
This item omitted regulation 3 8. Former subregulation 38(1) provided that offences under the Regulations, other than those under Division 3 of Part 4 of the Regulations, were offences of strict liability, Former subregulation 38(2) provided that prescribed Parts of Chapter 2 of the Criminal Code (as far as material) were taken to apply to the Regulations.
As each offence to which strict liability applies has to be identified as such in the statute, a global provision of the type previously provided by subregulation 38(1) is inappropriate. Amendments detailed under other items in this Schedule specifically apply strict liability to each individual offence in the Regulations, other than those under Division 3 of Part 4.
The provisions of former subregulation 38(2) were redundant once the Criminal Code had application to all existing Commonwealth legislation from 15 December 2001. This subregulation was therefore omitted.
Regulation 5 - Amendments of Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations
This Regulation provides that the amendments to the Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations are as set out in Schedule 3.
SCHEDULE 3 AMENDMENTS
Item [1] Regulation 1
This item brings the citation of the principal Regulations into line with current practice.
Item [2] - Regulation 22
This item substitutes a new regulation for the former regulation 22 concerning the count following an election conducted by a returning officer for a health and safety representative of a designated work group.
New subregulation 22(1) is identical to the former subregulation 22(1). It provides that a returning officer may direct a person to leave the place where the count is being conducted if the person is not entitled to be present, or to remain present at the count or if the person, being entitled to remain present, interrupts the count, except as provided by subregulation 22(2).
Former subregulation 22(2) prescribed the situations in which a candidate's scrutineer may interrupt the count. These situations were where the scrutineer objects to a decision by a returning officer that a ballot paper is formal or informal, as the case may be, or considers that an error has been made in the conduct of the count. The phrase "may interrupt the count and so inform the returning officer" appeared at the end of the former subregulation. For clarity, the new subregulation placed this phrase in front of the paragraphs setting out the situations in which interruption of the count is permissible.
Former subregulation 22(3) provided that a person who, without reasonable excuse, does not comply with a direction given to him or her under subregulation 22(1) commits an offence. The new subregulation 22(3) removes the defence of reasonable excuse, and the defence is recreated in a new subregulation 22(4). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of the provision is an element of the offence, which would have to be disproved in the negative by the prosecution. The amendment puts it beyond doubt that a reasonable excuse is a defence to the offence. The note to this subregulation provides that the defendant bears an evidential burden in relation to the question whether he or she had a reasonable excuse. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 22(5) applies strict liability to the offence in subregulation 22(3). This preserves the status of the provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [3] - Regulation 34
This item substitutes a new regulation for the former regulation 34 concerning the alteration or disturbance of the site of an accident or dangerous occurrence.
Former subregulation 34(1) provided that an employer must not, without reasonable excuse, alter or disturb the site of an accident or dangerous occurrence arising out of an undertaking of the employer, or allow the site to be altered or disturbed before an investigation or before the investigator gives permission for the alteration or disturbance of the site. Former subregulation 34(2) prescribed certain matters that would constitute a reasonable excuse if the alteration or disturbance was unavoidable and if it was not done recklessly, Former subregulation 34(3) prescribed a defence to prosecution for an offence against subregulation 34(1).
The substituted regulation changes and restructures these provisions. First, the new subregulation 34(1) does not contain defences or exceptions to the offence. These have been recreated within new subregulation 34(2). The rationale for these amendments is to prevent future interpretation that they are an element of the offence, which would have to be disproved in the negative by the prosecution.
Second, the new subregulation 34(1) does not retain "alter" or "disturb" as the active verbs. Instead the new subregulation proscribes the actions of a person whose conduct, by performance of an act or omission, results in the alteration or disturbance of the site of an accident or dangerous occurrence. The rationale for these amendments is that a person does not alter or disturb; rather the alteration or disturbance is the result of the person's action and is not in itself a physical element of conduct. It follows that retaining "alter" or "disturb" as the active verbs in a criminal offence might lead to difficulties in interpreting the offence following application of the Criminal Code. Constructing the offence in the amended form better identifies the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Code's default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the person's conduct, namely the resultant alteration or disturbance. The new subregulation retained the penalty of 10 penalty units.
New subregulation 34(2) groups together the exceptions or defences to the offence that were previously specified in former subregulations 34(1) and 34(3). The note to new subregulation 34(2) provides that the defendant bears an evidential burden in relation to matters mentioned in the subregulation. It also draws attention to the provisions of section 13.3 of the Criminal Code.
New subregulation 34(3) recreates former subregulation 34(2). Without limiting the generality of the reasonable excuse defence, new subregulation 34(3) sets out matters which would constitute a reasonable excuse. In this new subsection the words "alters" and "disturbs" are deactivated, for the same reason as set out above.
Regulation 6 - Amendments of Petroleum (Submerged Lands) Regulations 1985
This Regulation provides that the amendments to the Petroleum (Submerged Lands) Regulations 1985 are as set out in Schedule 4.
SCHEDULE 4 AMENDMENTS
Item [1] After subregulation 2A(2), including the penalty
This item inserts subregulation 2A(2A), which applies strict liability to the offence in paragraph (a) of subregulation 2A(2). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [2] - After subregulation 2B(2), including the penalty
This item inserts subregulation 2B(2A), which applies strict liability to the offence in subregulation 2B(2). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.
Item [3] - After subregulation 2C(3), including the penalty
This item inserts subregulation 2C(3A), which applies strict liability to the offence in paragraph (a) of subregulation 2C(3). This preserves the status of this provision. A note on strict liability is included and refers to the provisions of section 6.1 of the Criminal Code. An explanation of strict liability appears under item [1] of Schedule 1, above.