AUSTRALIAN NATIONAL MARITIME MUSEUM REGULATIONS 2018 (F2018L01294) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN NATIONAL MARITIME MUSEUM REGULATIONS 2018 (F2018L01294)

Explanatory Statement

Australian National Maritime Museum Act 1990

Australian National Maritime Museum Regulations 2018

Issued by the authority of the Minister for Communications and the Arts

Purpose

The purpose of the Australian National Maritime Museum Regulations 2018 (the Regulations) is to repeal and remake the current Australian National Maritime Museum Regulations 1991 (the Museum Regulations 1991), with some changes to reflect current drafting practice and ensure that the Regulations continue to be fit for purpose. In particular, the Regulations:

*         set out the process to determine the value of material in the national maritime collection proposed to be disposed of by the Australian National Maritime Museum (the Museum) requiring the approval of the Minister;

*         increase the financial thresholds above which the Museum requires the approval of the Minister to enter into contracts;

*         provide for the Museum to authorise and place conditions on the sale, supply, disposal, possession and control of liquor on the Museum's premises;

*         provide for the Director of the Museum to appoint security officers; and

*         create certain offences relating to the protection and safety of the collection and museum premises, and supply of liquor on the Museum’s premises.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003. The Regulations commence the day after they are registered.

Authority

The Australian National Maritime Museum Act 1990 (the Act) establishes the Museum as Australia's primary agency for the collection, preservation and provision of access to, Australia's maritime history. The Museum's functions are to develop, preserve and maintain a national collection, and to exhibit (or make available for others to exhibit) the national collection and other items of maritime history in the Museum's possession.

Section 54 of the Act enables the Governor-General to make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. Section 54 specifically provides for the regulations to regulate the conduct of persons on Museum premises, including removal of persons from any Museum premises; fix charges for entry to Museum premises; regulate, restrict or prohibit the making, using, printing, publishing exhibiting, selling or offering for sale of replicas, photographs, representation or copies of maritime historical material in the ownership or possession of the Museum; and prescribe penalties (not exceeding 5 penalty units) for offences against the regulations.

Section 10 of the Act sets out the framework for the exercise of the Museum's power to dispose of material in the national maritime collection. It relevantly provides that the Museum must not, without the approval of the Minister dispose of any material if the value of that material exceeds the amount specified in the Act.

Section 47 of the Act restricts the Museum's power to enter into a contract for which the Museum is to pay or receive an amount exceeding financial thresholds specified in the Act (or any higher amount that is prescribed by regulations).

Section 53 of the Act enables regulations to be made for and in relation to the sale, supply, disposal, possession or control of liquor on the Museum's premises.

The notes on the provisions of the Regulations are set out in Attachment A.

Consultation

The Museum was consulted in advance of drafting the instrument to confirm the desired policy and operational outcomes that the remade Regulations will support. The Council of the Museum was consulted and did not raise any concerns with this instrument.

The Office of Best Practice Regulation has confirmed that the preparation of a Regulation Impact Statement is not necessary, as the amendments are considered machinery in nature and have no more than minor regulatory impact on business, community organisations or individuals.

Statement of compatibility with human rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.


 

 

Attachment A

Notes on the Australian National Maritime Museum Regulations 2018

Part 1--Preliminary

Section 1 - Name

This section provides that the name of the Regulations is the Australian National Maritime Museum Regulations 2018.

Section 2 - Commencement

This section provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Regulations are made under the Australian National Maritime Museum Act 1990.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Section 5 - Definitions

This section provides definitions of terms used in the Regulations.

The note in the section highlights that a number of terms used in the instrument are defined in the Act, including Council, Director, Museum, national maritime collection and vessel. These terms have the same meaning in the Regulations as under the Act, pursuant to section 13 of the Legislation Act 2003.

Act is defined to mean the Australian National Maritime Museum Act 1990.

assistance animal is defined to have the same meaning as in the Disability Discrimination Act 1992 which, at the time of preparation of this explanatory statement, is a dog or other animal that is:

*         accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or

*         accredited by an animal training organisation that is prescribed by regulations made under that Act; or

*         trained:

o   to assist a person with a disability to alleviate the effect of the disability; and

o   to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

authorised liquor supplier is defined to mean a person who is authorised under section 9 of the Regulations to sell or supply liquor.

controlled Museum premises is defined to mean any of the following:

a)      any part of Museum premises that:

                                i.            is a building, structure or vessel, or a part of a building structure or vessel; and

                              ii.            is used to exhibit, develop, preserve, maintain or store Museum material;

b)      any part of Museum premises on or in which a notice is displayed that;

                                i.            is clearly visible to members of the public; and

                              ii.            has been authorised by the Director; and

                            iii.            states that that part of Museum premises is controlled Museum premises.

Director's notice is defined to have the meaning given by subsection 22(1) of the Regulations. Section 22 provides for the Director to issue a notice specifying prohibitions, conditions or restrictions relating to Museum premises, or Museum material.

liquor is defined to have the same meaning as in subsection 53(3) of the Act, which means any liquid containing alcohol ordinarily used or fit for use as a beverage.

liquor controlled premises is defined to mean any land, building, or vessel owned by, or under the control of, the Museum.

Museum material is defined to mean:

*         material forming part of the national maritime collection;

*         other material that is owned by the Museum or under its control; and

*         any structure, equipment or material kept by the Museum for purposes relating to the exhibition or display of, or research, educational or publicity activities relating to material forming part of the national maritime collection, or material owned by or under the control of the Museum.

Museum premises is defined to have the meaning given by subsection 54(2) of the Act, which is an area of land or water, or a building, structure or vessel, being an area, or a building, structure or vessel, as the case may be, that is owned by, or under the control of the Museum.

prohibited article is defined to mean:

*         an implement, other than a pen or pencil, that could be used to damage or conceal Museum material; or

*         a camera or associated equipment; or

*         a bag, case, parcel or other container that cannot be wholly enclosed within a cube each side of which is 300 millimetres in length.

security officer is defined to mean a person appointed under subsection 13(1) of the Regulations to be a security officer.

staff member is defined to mean a member of staff of the Museum.

vehicle is defined to include a motor vehicle, motorcycle, bicycle or a similar device for transportation.

water area of Museum premises is defined to mean an area of water within the limits of Museum premises.

Part 2--Disposal of material in national maritime collection

Section 6 - Value of material to be disposed

Paragraph 10(4)(b) of the Act provides that the Museum Council shall not, without the approval of the Minister, dispose of any material in the national maritime collection if the value of the material, as determined according to the regulations, exceeds $20,000.

Section 6 of the Regulations sets out the process for determining the value of material proposed to be disposed under subsection 10(4) of the Act. Subsection 6(1) of the Regulations provides that the value of material proposed to be disposed is to be determined by one or more independent experts appointed, in writing, by the Director. Subsection 6(2) of the Regulations states that the Director must not appoint a person to be an independent expert unless the Director is satisfied on reasonable grounds that the person has appropriate qualifications or expertise to determine the material's value. These processes have been included to provide greater transparency and clarity on the disposal of material process.

Part 3--Entering into contracts

Section 7 - Power to enter into contracts

Paragraphs 47(1)(a) and (b) of the Act provide that the Museum shall not, without the approval of the Minister, enter into a contract under which the Museum is to pay or receive funds exceeding $250,000 or, if a higher amount is prescribed by regulation, that higher amount. Section 47 is subject to subsection 10(4) of the Act, which requires the Minister to have approved of the disposal of material in the national maritime collection where the value of the material exceeds $20,000.

Section 7 of the Regulations prescribes a higher amount of $2,000,000 for each of paragraphs 47(1)(a) and (b) of the Act. This is an increase from the amounts currently prescribed by section 17 of the Museum Regulations 1991, which is $1,000,000 for each of those paragraphs. The higher amount is intended to provide commercial flexibility, accommodating for contract variations and contingency funds, and reducing administrative burden on the Museum, while maintaining appropriate Ministerial oversight of museum expenditure.

Part 4--Supply of liquor

Section 8 - Purposes of this Part

This section provides that Part 4 is made for the purposes of subsection 53(1) of the Act. Subsection 53(1) of the Act provides that the regulations may make provision for and in relation to the sale, supply, disposal, possession or control of liquor on or in any premises owned by or under the control of the Museum.

Section 9 - Authorisation to supply liquor

Section 9 relates to authorising the sale or supply of liquor on or in Museum premises, and sets out what must be specified in an authorisation. This framework is required because, for example, events may be held at the Museum where alcohol may be served.

Subsection 9(1) provides the Director may, in writing, authorise a person, or class of persons to sell or supply liquor on or in liquor controlled premises. Subsection 9(2) provides that the Director must specify in the authorisation the parts of the liquor controlled premises where liquor may be sold or supplied and the hours during which liquor may be sold or supplied. Subsection 9(3) provides that the Director may specify in the authorisation conditions to which the authorisation is subject.

The Regulations do not provide for merits review of a decision made under section 9, on the basis that the grant of a liquor authorisation relates to commercial decisions made by the Museum. This is consistent with the position under the Museum Regulations 1991 and under similar regulations governing the supply of liquor in certain other national cultural institutions (such as the National Portrait Gallery of Australia and the National Gallery of Australia).

Section 10 - Supply of liquor

Authorisations

Section 10 creates several offences regarding the sale or supply of liquor on or in liquor controlled premises. These offences are required to ensure that the sale and supply of liquor is controlled and safe (noting that subsection 53(2) of the Act excludes state and territory laws relating to the sale, supply and disposal of liquor that would otherwise apply).

Subsection 10(1) provides that it is an offence if a person sells or supplies liquor on or in liquor controlled premises. The penalty for this offence is 5 penalty units.

However, subsection 10(2) provides that the offence provision in subsection 10(1) does not apply to a person:

*         selling or supplying liquor if they are authorised by the Dirtector to sell or supply liquor under subsection 9(1) (paragraph 10(2)(a)); or

*         supplying liquor (other than by selling it) that was sold or supplied to that person on or in liquor controlled premises by an authorised liquor supplier (paragraph 10(2)(b)).

The note under subsection 10(2) provides that in any prosecution for an offence under subsection 10(1), a defendant intending to rely on an exception in subsection 10(2) bears an evidential burden in relation to the matters in subsection (2). This means the defendant must raise evidence that his or her conduct fell within the exception. If the defendant discharges this evidential burden, the prosecution must disprove the matter beyond reasonable doubt.

Placing the evidential burden on the defendant in this case is appropriate, having regard to the principles in the Attorney-General's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide).

In regard to paragraph 10(2)(a), it would be disproportionately more difficult and costly, taking into account the relatively low penalty, for the prosecution to prove that an accused person sold or supplied liquor without being authorised to do so than it would be for a person to raise evidence of the defence, that they held the appropriate authorisation. An accused could cheaply and readily raise evidence of the authorisation.

In regard to paragraph 10(2)(b), it is within the peculiar knowledge of a person supplying liquor (other than by selling) that they obtained the liquor on or in liquor controlled premises from an authorised liquor supplier. There may well be no way for staff members to know with certainty the origin of liquor supplied by a person, including the circumstances in which it was first supplied to that person by another party. It would be significantly and disproportionally (given the low penalty) more difficult for the prosecution to prove, for example, that relevant liquor was not supplied to a person on liquor controlled premises, than it would be for the person to raise evidence that his or her conduct fell within the defence. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In addition to the above matters, in accordance with the Guide, creating the defence is more readily justified as the offence carries a relatively low penalty of 5 penalty units and the conduct proscribed by the offence aims to achieve the important public health and safety objective of preventing unauthorised supply of liquor, including to minors.

Subsection 10(3) provides that it is an offence if a person is an authorised liquor supplier, and sells or supplies liquor on or in liquor controlled premises, and does not comply with the conditions to which their authority as an authorised liquor supplier is subject. This is because the intention is that an authorised liquor supplier only supply liquor in compliance with their authorisation. The penalty for this offence is 5 penalty units.


 

Adulterated liquor

Subsection 10(4) provides that it is an offence if a person on or in liquor controlled premises sells or supplies liquor and the liquor is adulterated. This is to ensure that the liquor being supplied is genuinely the product described. The penalty for this offence is 5 penalty units.

Intoxicated persons and minors

Subsection 10(5) provides that it is an offence if a person on or in liquor controlled premises sells or supplies liquor to another person and the other person is intoxicated or under 18 years of age. This is consistent with laws of New South Wales which prohibit the supply of alcohol to intoxicated persons. The penalty for this offence is 5 penalty units.

Subsection 10(6) provides that a person may refuse to sell or supply liquor to another person on or in liquor controlled premises if the other person does not satisfy the first person of the other person's age. This provision puts it beyond doubt that a person supplying liquor may refuse service if they are not satisfied the person is 18 years of age or older.

Section 11 - Buying or obtaining liquor

Subsection 11(1) provides that it is an offence for a person who is under 18 to buy or obtain liquor on or in liquor controlled premises. The penalty for this offence is 5 penalty units.

Subsection 11(2) creates an offence for a person to send another person, who is under 18, to buy or obtain liquor on their behalf on or in liquor controlled premises. The penalty for this offence is 5 penalty units.

Part 5--Conduct of persons on Museum premises

Division 1 - Purposes of this Part

Section 12 - Purposes of this Part

This section provides that Part 5 of the Regulations is made for the purposes of paragraphs 54(1)(c), (e) and (f) of the Act.  Part 5 regulates the conduct of persons on Museum premises. Paragraph 54(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act or necessary or convenient for carrying out or giving effect to the Act. In particular, paragraphs 54(c), (e) and (f) provide that the Governor-General may make regulations:

*         regulating, restricting or prohibiting the entry of persons onto or into any (part of) Museum premises;

*         regulating the conduct of persons on or in any (part of) Museum premises;

*         providing for and in relation to the removal of persons from any (part of) Museum premises;

*         regulating, restricting or prohibiting the making, using, printing, publishing, exhibiting, selling or offering for sale of replicas, photographs, representations or copies of maritime historical material in the ownership or possession of the Museum; and

*         prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.

Division 2 - Security Officers

Section 13 - Security officers

Section 13 relates to the appointment and identification of security officers.

Subsection 13(1) enables the Director to appoint, in writing, certain persons to be a security officer if the Director is reasonably satisfied that the person has received appropriate training. This may include a member of the staff of the Museum, an officer or employee seconded to the Museum under section 41 of the Act, a person engaged as a consultant under section 42 of the Act, a person employed under contract with the Museum or an employee of person employed under contract with the Museum.

Requiring security officers to be appointed in writing ensures that persons who are conferred powers under the instrument are appointed through a formal process which requires consideration by the Director.

Subsection 13(2) provides that the Director must issue an identity card to a security officer appointed under subsection 13(1). This is because security officers have special powers under the Regulations, for example, to direct people to leave the premises and / or apprehend people in certain circumstances. It is important in these circumstances that security officers are appropriately identified.

Subsection 13(3) provides that the identity card must contain a recent photograph of the person to whom it is issued and be in the approved form (if any). Subsection 13(4) provides that a security officer must carry the identity card at all times when performing functions or exercising powers as a security officer.  This is to ensure that they can be identified as such to members of the public.

Subsection 13(5) provides that a person commits an offence of strict liability if they cease to be a security officer, and do not return their identity card to the Director, within 14 days of so ceasing. The penalty for this offence is 1 penalty unit. This is a strict liability offence, as penalising persons for not returning identity cards is intended to encourage the prompt return of identity cards. This strict liability offence recognises that access to identity cards by individuals who are not appointed security officers weakens the security of the Museum. This could have impacts on public safety, the safety of staff members, and the safety of the national maritime collection.

Subsection 13(6) provides an exception to the offence in subsection 13(5); an offence is not committed if the identity card was lost or destroyed.

The note under subsection 13(6) provides that in any prosecution for an offence under subsection 13(5), a defendant intending to rely on the exception in subsection 13(6) has the evidential burden of showing that the identity card was lost or destroyed. This could be discharged, for example, by providing evidence that the card was reported as lost or destroyed. It is appropriate that the defendant bear the evidential burden in this case as the matters required to be established -- that the person's identity card was lost or destroyed -- are matters peculiarly within the knowledge of the defendant. It would also be disproportionately more difficult and costly, taking into account the relatively low penalty, for the prosecution to prove that the person's identity card was not lost or destroyed than it would be for a person to raise evidence of the defence.

Section 14 - Powers of security officers - prohibiting entry

Section 14 provides that in certain circumstances, a security officer may prohibit a person or group of people from entering Museum premises. These powers are required to ensure the safety and wellbeing of members of the public, staff members and Museum material.

Subsection 14(1) sets out the grounds on which a security officer may exercise the power to prohibit a person or group of people from entering Museum premises. Those grounds are if the security officer has reasonable grounds for believing that:

*         the person or group, has, under section 15, been directed to leave the Museum premises on one or more occasions; or

*         the person has, under section 16, been removed from Museum premises on one or more occasions; or

*         public safety or the safety of staff members is, or may be, endangered by the presence of the person or the group on Museum premises; or

*         the conduct of the person or group on Museum premises is likely to cause offence to members of the public or staff members; or

*         the person or group is likely to commit an offence against the Regulations.

Subsection 14(2) provides power for a security officer to prohibit members of the public or staff members from entering Museum premises if they believe, on reasonable grounds, that the safety of the public or staff on Museum premises will be or is likely to be endangered for any reason.

Section 15 - Powers of security officers - directions to leave

Section 15 provides that in certain circumstances, a security officer may direct a person or group of persons to leave Museum premises, or any part of Museum premises. These powers are required to ensure the safety and wellbeing of members of the public, staff members and Museum material.

Subsection 15(1) sets out the grounds on which a security officer may exercise the power to issue a direction to leave.  Those grounds are if the security officer has reasonable grounds for believing that:

*         public safety or the safety of staff members is, or may be, endangered by the continued presence of the person or the group on or in Museum premises; or

*         the conduct of the person or group on or in Museum premises is likely to cause offence to members of the public or staff members; or

*         the person or group intends to commit, is committing, or has committed, an offence against the Regulations.

Subsection 15(2) provides power for a security officer, when directing a person in accordance with paragraph 15(1)(c), to take a photograph of the person and / or direct the person to provide the person's name and residential address to the security officer.

Subsection 15(3) provides power for a security officer to direct members of the public or staff members to leave Museum premises if they believe, on reasonable grounds, that the safety of the public or staff is endangered for any reason.

Section 16 - Powers of security officers - apprehension

Section 16 provides that in certain circumstances, a security officer may apprehend a person, using such force as is reasonably necessary. These powers are required to ensure the safety and wellbeing of members of the public and staff members, and the protection of Museum material.

Subsection 16(1) sets out the circumstances in which a security officer may exercise the power to apprehend a person. Those grounds are if the security officer has reasonable grounds for believing that a person on or in Museum premises:

*         intends to interfere with, is interfering with, or has interfered with, Museum material; or

*         intends to damage, is damaging, or has damaged, Museum premises or Museum material; or

*         is refusing or has refused to comply with a direction given by a security officer in the performance of the officer's duties.

Subsection 16(2) allows the security officer to apprehend the person, using such force as is reasonably necessary. The appointment of security staff is generally limited to personnel of security firms where those firms have successfully tendered for the provision of security services. Firms are engaged on the basis of their proven track records and the security qualifications of personnel among other considerations. Granting these powers ensures that the Museum is able to appropriately protect members of the public, Museum staff and Museum material.

Subsection 16(3) provides the power for a security officer to either remove the apprehended person from Museum premises or hold the person in the custody of the security officer until the person can be taken into the custody of a member of a police force.

Subsection 16(4) provides that a person who is held in the custody of a security officer under subsection 16(3) must be delivered into the custody of a member of a police force as soon as practicable.

Section 17 - Powers of security officers - vehicles and vessels

Subsection 17(1) provides that a security officer may direct a person who is apparently in charge of a vehicle that is on or in Museum premises, to park the vehicle on or in Museum premises, not park the vehicle on or in Museum premises, or not to park the vehicle in a specified place on or in Museum premises. Vehicle is defined in the Regulations to include a motor vehicle, motorcycle, bicycle or similar device for transportation.  This power is required to ensure the safety of members of the public, staff members and Museum material.

Subsection 17(2) provides that a security officer may direct a person who is apparently in charge of a vessel, to not enter a water area of Museum premises, or if the vessel is about to enter, or has entered, a water area of Museum premises made available by the Director for the purpose, to occupy a part of the area indicated by the security officer, or to leave a water area of Museum premises.

Section 18 - Powers of security officers - possible prohibited articles

This section enables a security officer to direct a person who is carrying an article that appears to be a prohibited article on or in Museum premises to submit the article for inspection or to leave the article in a designated area. Leaving an article that appears to be prohibited in a designated location ensures that the article is not taken into or onto Museum premises, and allows for the person to collect it upon exiting Museum premises.

Section 19 - Powers of security officers - taking photographs

This section enables a security officer to direct a person who is on or in controlled Museum premises to not take any photographs while in or on controlled Museum premises, or any part of controlled Museum premises, or to not to take photographs of specified Museum material. This power is required to ensure the safety of Museum premises as well as the protection of Museum material.  It is also to prevent unauthorised copying and or commercial distribution of images of Museum material or material on loan to the Museum which is subject to loan contract conditions prohibiting photography.

Section 20 - Powers of security officers - deletion and destruction of photographs

This section enables a security officer - with reasonable grounds - to direct a person to delete or destroy a photograph taken on or in controlled Museum premises in contravention of any direction of a security officer under Division 2, or a prohibition, condition or restriction in a Director's notice made under Division 3 of the Regulations. This power is required to ensure the safety of Museum premises and the protection of Museum material.  It is also to prevent unauthorised copying and or commercial distribution of images of Museum material or material on loan to the Museum which is subject to loan contract conditions prohibiting photography.

Section 21 - Powers of security officers - offence

This section provides that a person commits an offence if the person is on or in Museum premises and they do not comply with a direction from a security officer under sections 15, 17 or 18, or if the person is on or in controlled Museum premises and they do not comply with a direction from a security officer under sections 19 or 20. The purpose of these offence provisions is to enhance the effectiveness of the directions given by security officers. Encouraging compliance with directions helps to ensure that Museum premises are safe and secure for members of the public and staff members. The penalty for these offences is 5 penalty units.

Division 3 - Director's notices

Section 22 - Director's notices

Section 22 sets out the power for the Director to issue a Director's notice, sets out what such a notice must contain, and provides for an offence for contravention of a notice.

Subsection 22(1) enables the Director to, by legislative instrument, issue a notice that specifies a prohibition, condition or restriction relating to Museum premises or Museum material. In accordance with other similar collecting institutions and international standards of museum management, the control of persons at the Museum will be necessary on such issues as the use of cameras and equipment, the safety of the national collection, the conduct of the public and the control of food, liquid and animals on Museum premises. This section enables the Museum flexible control over premises, collection and exhibitions to accommodate changing standards of museum management, appropriate function and event management and technological advances. A notice issued under this subsection is not intended to target particular classes of persons and will apply to all patrons of the Museum equally.

Subsection 22 (2) provides that the notice must be set out in the legislative instrument, must state that it has been issued by the authority of the Director and must specify a prohibition, condition or restriction relating to Museum premises or Museum material.

Subsection 22(3) provides that a person commits an offence if they are on or in Museum premises, a copy of a Director's notice is displayed in accordance with subsection (4), a prohibition, condition or restriction specified in a Director's notice applies to the person, and the person does not comply with the prohibition, condition or restriction. The penalty for contravening a notice is 5 penalty units.

Subsection 22(4) provides that for the purposes of paragraph (3)(b) a notice must be clearly displayed in a way that gives adequate notice to the public of the prohibition, condition or restriction and must be displayed at either or both of the entrances to the area of Museum premises to which it relates, and the location to which it relates.


 

Division 4 - Other provisions

Section 23 - Damaging Museum material and property

Subsection 23(1) provides that it is an offence for a person to touch or interfere with certain types of Museum material while on or in any controlled Museum premises. The purpose of this offence is to act as a deterrent to touching or interfering with Museum material. The penalty for committing such an offence is 5 penalty units.

Subsection 23(2) provides that it is an offence to engage in conduct that damages Museum material while on or in any controlled Museum premises. The purpose of this offence is to act as a deterrent to conduct which may damage Museum material. The penalty for committing such an offence is 5 penalty units.

Subsection 23(3) provides that recklessness or negligence is the fault element under paragraph (2)(c). Where recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element, in accordance with section 5.4 of the Criminal Code (the Code).

Subsection 23(4) provides that it is an offence for a person to attach an article to a building, structure, vessel, wall or fence, or write on a building, structure, vessel, fixture, fitting, wall or fence; and either the building, structure or vessel is Museum premises; or the wall, fence, fixture or fitting is on land or water that is Museum premises. The purpose of the offence is to act as a deterrent for attaching articles to or writing on a building, fixture, fitting, wall or fence. The penalty for committing such an offence is 5 penalty units.

Subsection 23(5) provides that it is an offence to engage in conduct which damages a building, structure, vessel, fixture, fitting, wall, fence, plant or garden; and either the building, structure or vessel is Museum premises; or the fixture, fitting, wall, fence, plant or garden is on land or water that is Museum premises. The purpose of the offence is to act as a deterrent to such conduct. The penalty for committing such an offence is 5 penalty units.  Subsection 23(6) provides that the fault element under paragraph (5)(b) is recklessness or negligence. As noted above, proof of intention or knowledge will be sufficient to satisfy the fault element of recklessness.

Subsection 23(7) provides that section 23 does not limit section 132.8A of the Code which concerns damaging or destroying Commonwealth property.

Section 24 - Selling articles

This section establishes that it is an offence for a person on or in any Museum premises to engage in conduct that exposes or causes to be exposed for show, sale or hire any article for use or consumption by a member of the public. The penalty for committing such an offence is 5 penalty units.


 

Section 25 - Animals

Section 25 provides that in certain circumstances, a person will commit an offence if the person allows an animal that belongs to the person or is in their charge, to enter or remain on or in any controlled Museum premises. This is to ensure that Museum premises are both hygienic and safe for members of the public and staff members as well as reducing the potential for damage to Museum material, while still providing access to the Museum to people who require an assistance animal, or police force members performing their duties, and allowing the Museum to bring animals to the Museum for special events or particular purposes. The term 'animal' is broad, and includes birds and reptiles, so as not to limit the Museum's activities which, for example, may include special events featuring animals from Taronga Zoo.

Subsection 25(1) establishes it as an offence for a person to allow an animal belonging to them, or in their charge, to enter or remain in any controlled Museum premises. However, subsection 25(2) provides that subsection 25(1) does not apply if the person is a person with a disability and the animal is an assistance animal (defined in section 5 above), or the person is a member of a police force acting in accordance with their duties, or the animal is under the control of the Museum.

There is a note under subsection 25(2) which provides that in any prosecution for an offence under subsection 25(1), a defendant intending to rely on the exception in subsection 25(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence to show that the animal is an assistance animal. It is appropriate that the defendant bear the evidential burden because the matters specified in that subsection are likely to be within the peculiar knowledge of the person involved. These matters are whether the person has a disability (within the meaning of the Disability Discrimination Act 1992) and whether an animal belonging to that person or in their charge is an assistance animal; whether the person is a member of a police force acting in accordance with their duties; or whether the animal is under the control of the Museum.

It would be significantly and disproportionately more difficult for the prosecution to prove that a person is not a person with a disability and that their animal is not an assistance animal, than it would be for any accused to raise the relevant defence by providing evidence of their own status (and that of their assistance animal). This is similarly the case in relation to proving that a person is not a police officer acting in accordance with their duties. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, the penalty for contravention of subsection 21(2) is the relatively low amount of five penalty units, which tends to support a defence provision in these circumstances.

Subsection 25(3) creates an offence if a person allows an assistance animal belonging to them, or in their charge, to enter or remain on or in any controlled Museum premises, and the animal is not restrained on a lead or by other reasonable means. The penalty for these offences is 5 penalty units.


 

Section 26 - Food and liquids

Subsection 26(1) provides that a person commits an offence if they bring food or liquid onto or into any controlled Museum premises, or consume food or liquid on or in any controlled Museum premises.

However, subsection 26(2) provides that subsection 26(1) does not apply:

*         if the food or liquid is for medical purposes; or

*         to bringing water into or drinking water in any controlled Museum premises if the water is in a sealed container; or

*         to bringing food or liquid onto or into any controlled Museum premises for the purpose of feeding an infant if the food or liquid is in a sealed container; or

*         to breastfeed an infant; or

*         to bringing food or liquid into, or consuming food or liquid in, an area designated for consuming food or liquid.

The note under subsection 26(2) provides that in any prosecution for an offence under subsection 26(1), a defendant intending to rely on the exception in subsection 26(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence such as a medical certificate stating that the food or liquid is medication. It is appropriate that the defendant bear the evidential burden as the matters required to be established are peculiarly within the knowledge of the person.

Section 27 - Smoking

This section provides that it is an offence if a person smokes on or in any Museum premises. This offence is required for the health of members of the public and staff members, and to prevent damage to Museum material. The penalty is 5 penalty units.

Section 28 - Prohibited articles

Subsection 28(1) provides that it is an offence if a person brings a prohibited article onto or into any controlled Museum premises, or if a person uses a prohibited article on or in any controlled Museum premises. The penalty for committing this offence is 5 penalty units.

However, subsection 28(2) provides that subsection (1) does not apply to:

*         bringing a prohibited article onto or into any controlled Museum premises if the person deposits the item, as soon as practicable, at the place in or on the controlled Museum premises designated for that purpose; or

*         bringing a camera or camera bag onto or into any controlled Museum premises, or using a camera, for non-commercial purposes.

The note under subsection 28(2) provides that in any prosecution for an offence under subsection 28(1), a defendant intending to rely on the exception in subsection 28(2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence that the prohibited article was deposited at the place in or on the controlled Museum premises designated for prohibited articles. It is appropriate that the defendant bear the evidential burden as the matters required to be established - such as whether an item has been deposited as soon as practicable or that a camera was used for non-commercial purposes - are peculiarly within the knowledge of the person.

Section 29 - Fishing from Museum premises

Section 29 provides that it is an offence if a person is on or in any Museum premises and fishes from any part of Museum premises. This offence is required for the safety of members of the public and staff members, and to prevent damage to Museum premises and Museum material. The penalty for committing this offence is 5 penalty units.

Section 30 - Launching or mooring vessels

Section 30 provides that it is an offence if a person launches a vessel from, or moors a vessel to, any part of Museum premises. This offence is required for the safety of members of the public and staff members, and to prevent damage to Museum premises and Museum material. The penalty for committing this offence is 5 penalty units.

Section 31 - Swimming to or from Museum premises

Section 31 provides that it is an offence if a person swims to or from any part of Museum premises. This offence is required for the safety of members of the public and staff members, and to prevent damage to Museum premises and Museum material. The penalty for committing this offence is 5 penalty units.

Division 5 - Defences

Section 32 - Defences

Section 32 provides for certain defences to prosecutions under Parts 4 or 5 of the Regulations, being essentially that the Director has consented in writing to the conduct or that the person was acting in accordance with their duties as a member of the Council, the Director, a staff member, officer or employee mentioned in section 41 of the Act, a person engaged as a consultant under section 42 of the Act, a person employed under contract with the Museum, an employee of person employed under contract with the Museum, or a volunteer engaged by the Museum to assist the Museum. These defences are required to ensure that where a person is acting in accordance with their duties, or in accordance with written consent from the Director, they are not prosecuted for an action that would otherwise constitute an offence under the Regulations.

Subsection 32(1) provides that a person charged with an offence under Part 4 or Part 5 has a defence to that prosecution if, when the relevant conduct was engaged in by the person, the Director had consented, in writing, to the conduct.

Subsection 32(2) provides that a person accused of an offence under Part 4 or Part 5 has a defence to a prosecution if the person is a member of the Council, the Director, a staff member, officer or employee mentioned in section 41 of the Act, a person engaged as a consultant under section 42 of the Act, a person employed under contract with the Museum, an employee of person employed under contract with the Museum, or a volunteer engaged by the Museum to assist the Museum and that person is acting in accordance with their duties.

The note under subsection 32(2) provides that in any prosecution for an offence under Part 4 or Part 5, a defendant intending to rely on the exceptions in subsections 32(1) and (2) has the evidential burden of showing that an exception applies. This could be discharged, for example, by providing evidence in writing of the Director's consent, or evidence that they were acting in accordance with their duties.

The reversal of the evidential burden of proof is appropriate as it would be disproportionately difficult and costly, taking into account the low penalty, for the prosecution to prove that the Director had not consented in writing to a person engaging in conduct that contravenes Part 4 or 5 of the Regulations, than for the person to raise evidence of the written consent.

It would be similarly disproportionately difficult and costly for the prosecution to prove that a person is not one of the categories of persons listed in subsection 32(2) and was not acting in accordance with their duties, than for the person to raise evidence of their appointment or employment and associated duties.

Any accused could cheaply and readily raise evidence of their written consent, or of their appointment or employment and associated duties. Once the evidential burden is discharged, the prosecution would then be required to disprove the matter beyond reasonable doubt.

In accordance with the Guide, creating the defence is more readily justified as the offence carries a relatively low penalty of 5 penalty units.

Part 6--Entry charges

Section 33 - Entry charges

Section 33 relates to the charging of entry charges and generally provides that no charge is fixed for entry for any Museum premises, unless it is for a special exhibition or event, or for a service such as parking. The purpose of this provision is to encourage free admission, as this increases audience access to the national maritime collection.

Under subsection 2A(5) of the Museum Regulations 1991, prescriptive entry charges were able to be waived or reduced by the Director for any person or group, for the purposes of encouraging people to visit the Museum or, promoting access to the Museum for educational or disadvantaged groups.

Subsection 33(1) provides that for the purposes of paragraph 54(1)(d) of the Act, no charge is fixed for entering any Museum premises. Subsection 33(2) provides that the Museum is not prevented from fixing charges for special exhibitions or other special events under paragraph 7(1)(r) of the Act, or for services rendered by the Museum under paragraph 7(1)(u) of the Act, including parking on Museum premises.

Part 7--Delegations

Section 34 - Delegation of powers and functions

Section 34 relates to the delegation of the Director's power and functions under the Regulations. This power is required to ensure that functions and decision-making for the Museum continues in the Director's absence, for example when taking leave or travelling overseas.

Subsection 34(1) provides that the Director may, in writing, delegate their powers and functions under the Regulations to a staff member who is an SES employee or acting SES employee, or an APS employee who holds or performs the duties of an Executive Level 2 position or equivalent position.

Subsection 34(2) provides that a person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the Director.

Part 8--Transitional provisions

Section 35 - Definitions

This section provides that old regulations is defined to mean the Australian National Maritime Museum Regulations 1991, as in force immediately before the commencement of this section.

Section 36 - Authorisation to supply liquor

This section provides that an authority given under subregulation 8(1) of the old regulations and in force immediately before the commencement of this section has effect, from that commencement, as if it were an authorisation given under section 9 of this instrument. This is to ensure that existing authorisations in force continue to exist under the new regulations.

Section 37 - Security officers

Subsection 37(1) provides that an appointment made under subregulation 3(1) of the old regulations, and in force immediately before the commencement of this section has effect, from that commencement, as if it had been made under subsection 13(1) of this instrument.

Subsection 37(2) provides that an identity card issued under subregulation 3(2) of the old regulations and in force immediately before the commencement of this section has effect, from that commencement, as if it had been issued under subsection 13(2) of this instrument. This is to ensure that existing appointments and identity cards in force continue to have effect under the new regulations.


 

Section 38 - Director's notices

This section provides that a notice issued by the authority of the Director under the old regulations and in force immediately before the commencement of this section has effect, from that commencement, as if it had been issued under subsection 22(1) of this instrument. This is to ensure that existing Director's notices in force continue to exist under the new regulations.

Section 39 - Consent of Director

This section provides that for the purposes of subsection 32(1), it does not matter whether consent was given before, on or after the commencement of this section. Subsection 32(1) states that it is a defence to a prosecution under Part 4 or 5 of the Regulations that, when the relevant conduct was engaged in, the Director had consented, in writing to the conduct.

Schedule 1 - Repeals

Schedule 1 repeals the Australian National Maritime Museum Regulations 1991, which are due to sunset on 1 October 2018, so it can be replaced with this new instrument.


 

Attachment B

Statement of Compatibility with Human Rights

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

 

Australian National Maritime Museum Regulations 2018

Overview of the Regulations

The Australian National Maritime Museum Act 1990 (the Act) establishes the Australian National Maritime Museum (the Museum) as Australia's primary agency for the collection, preservation and provision of access to Australia's national collection of maritime history. The Museum's functions are to develop and maintain a national collection, and to exhibit (or make available for others to exhibit) the national collection and other items of maritime history in the Museum's possession.

The purpose of the Australian National Maritime Museum Regulations 2018 (the Regulations) is to repeal and remake the current Australian National Maritime Museum Regulations 1991, with some changes to reflect current drafting practice and ensure that the Regulations continue to be fit for purpose. In particular, the Regulations would:

*         set out the process to determine the value of material in the national maritime collection proposed to be disposed of by the Museum;

*         increase the financial thresholds above which the Museum requires the approval of the Minister to enter into contracts;

*         provide for the Museum to authorise and place conditions on the sale, supply, disposal and possession of liquor on the Museum's premises;

*         provide for the Director of the Museum to appoint security officers; and

*         create certain offences relating to the protection of the collection, control of museum premises and material and the supply of liquor on the Museum's premises.

Human rights implications

The Regulations are compatible with the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

The instrument engages the following rights:

*         the right to security of the person and freedom from arbitrary detention in Article 9 of the International Covenant on Civil and Political Rights (the ICCPR)

*         the right to take part in cultural life under Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)

*         the presumption of innocence in Article 14(2) of the ICCPR.

 

Right to security of the person and freedom from arbitrary detention

Article 9 of the ICCPR provides for the right to security of the person and freedom from arbitrary detention. This right requires that persons not be subject to arrest and detention except as provided for by law, and that neither the arrest nor the detention is arbitrary. Arrest or detention may be permissible under domestic law, but nevertheless be arbitrary. Arbitrary is not to be equated with being against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

Section 16 of the Regulations provides that in certain circumstances, a security officer may apprehend a person, using such force as is reasonably necessary. The circumstances in which a security officer may exercise the power is limited to when the officer has reasonable grounds for believing that the person on or in Museum premises:

*         intends to interfere, is interfering, or has interfered with Museum material;

*         intends to damage, is damaging, or has damaged Museum material; or

*         is refusing to comply with a direction given by a security office in the performance of the officer's duties.

If a security officer apprehends a person for the reasons discussed above, under subsection 16(3) the security officer may remove the person from Museum premises, or hold the person in the security officer's custody until the person can be taken into the custody of a member of the police force. 

The Regulations provide that a security officer is to be appointed, in writing, by the Director and is to be provided with an identity card. A security officer is required under the Regulations to carry the identity card at all times when they are performing their functions, or exercising their powers, and will thus clearly be identifiable to the public when performing their duties (section 13).

A security officer has several powers to direct persons on or in Museum premises to do certain things, in particular a security officer can direct a person:

*         to leave Museum premises, if the officer has reasonable grounds to believe that the person's conduct may endanger public safety, cause offence to persons, or commit an offence against the Regulations (section 15);

*         who is apparently in charge of a vehicle that is on or in Museum premises, to park the vehicle on or in Museum premises, or not to park the vehicle on or in Museum premises or in a specified place on or in Museum premises (section 17); or

*         who is apparently in charge of a vessel to leave or not to enter into a water area of Museum premises or if the vessel is about to enter, or has entered, a water area of Museum premises made available by the Director for the purpose, to occupy a part of the area indicated by the security officer (section 17); or

*         to submit for inspection possible prohibited articles, or leave such articles in designated places (section 18).

It is noted that the power in section 16 is not one of arrest, but one of apprehension. While not strictly a power of arrest, the apprehension of the person can still lead to interference with the personal liberty of the person and as such it has been assessed against Article 9 of the ICCPR. While the apprehension is permissible under domestic law, being authorised by section 16 if the power is enlivened, it may nevertheless be arbitrary if it is vague, or allows for the exercise of powers in broad circumstances that are not sufficiently defined, or is not reasonable or necessary in all circumstances.

Under section 16 it is clearly defined when a security officer can exercise the power to apprehend a person. The power can only be exercised if the security officer has reasonable grounds for believing that a person is, has or will, interfere or damage Museum material, or is refusing to comply with a direction of a security officer issued in their duties. 

The test of 'reasonable grounds for believing' is an objective test that requires consideration of all of the particular circumstances. It requires that objectively, in the circumstances, there must be reasonable grounds for believing that the conduct mentioned above is about to, has, or is occurring before the security officer can exercise the power.

The first two bases on which a security officer can exercise the power relates to the protection of Museum material from interference and/or damage by a person. Items and material of maritime history held by the Museum make up the national maritime collection and many are invaluable in terms of their significance and importance to Australia, and the Australian public. Many of the items are also valued at significant amounts of money. In light of the national significance and value of this material, in order to protect the national maritime collection, it is reasonable, necessary and proportionate for a security officer to have a power to apprehend a person who they reasonably believe is, has or will, interfere or damage Museum material.

The third basis on which a security officer can exercise the power to apprehend is when they reasonably believe a person is refusing to comply with a direction of a security officer. The direction powers of security officers are primarily directed to the safety of the public and staff members, and to prevent Museum material being damaged or interfered with. If a person is refusing to abide by a lawful direction of a security officer, the continued conduct may endanger the public or staff members, or could present a risk to Museum material. In these circumstances it is reasonable, necessary and proportionate for a security officer to have a power to apprehend a person to protect the public and staff members, and the national maritime collection.

In addition to the requirement of the reasonableness threshold being met for the power to be exercised by a security officer, subsection 16(2) makes it clear that when apprehending the person, the security officer can only use such force as is reasonably necessary. This places a further limit on the apprehension power to ensure that the power is exercised reasonably and proportionately in the circumstances.

A further limitation on the power is that the security officer, once they have apprehended the person, is to remove the person from Museum premises, or hold them in the custody of a security officer until the person can be taken into the custody of a member of a police force.  If a person is held in the custody of security officer they must be delivered into the custody of a member of a police force as soon as practicable. This limitation means that the apprehension is for a finite period of time, until the person has been removed from Museum premises where they can no longer endanger the public, the staff, or the national maritime collection, or until they have been taken into custody by a member of a police force exercising their arrest and custodial powers.  

While the apprehension power may engage the right to security of the person and freedom from arbitrary detention, it can only be exercised in limited circumstances. Those circumstances are directed to the safety of the public, staff members, and the protection of the national maritime collection. Before the power can be exercised, objectively there must be reasonable grounds for believing that one of the three limited circumstances existed.  Further, whilst the power is being exercised, it is subject to important restrictions to ensure only such force as is necessary to apprehend the person is used, and that the apprehension is limited for the time it takes to remove the person from Museum premises, or until the person is taken into the custody of a member of the police force. 

Accordingly, to the extent the apprehension power is a limitation on the right to security of the person and freedom from arbitrary detention, for the reasons discussed above, it is reasonable, necessary and proportionate.

Right to take part in cultural life

Article 15 of the ICESCR protects the right of all persons to take part in cultural life. The Regulation regulates access to the Museum, and as such engages the right to take part in cultural life    

The UN Committee on Economic, Social and Cultural Rights has stated culture encompasses: ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions. The same Committee has stated that in order to assure enjoyment of the right to take part in cultural life, countries should provide cultural services that are open for everyone to enjoy and benefit from, including libraries, museums, theatres, cinemas and sports stadiums.    

Section 33 relates to entry charges that can be imposed for access to the Museum and provides that there is no charge fixed for entering any Museum premises.  However, section 33 provides that this does not prevent the Museum from charging for special exhibitions or other special events, or for parking on Museum premises.

As an institution that is established to develop and maintain a national collection of maritime history of national significance to Australia, and the Australian public, the Museum has promoted participation in cultural life for decades. The Museum is a place where Australians can celebrate and protect important aspects of our national cultural heritage. Providing for free entry for the public to access and view the national maritime collection continues with that tradition and enhances the right to take part in the cultural life of Australia.

While the Museum can fix charges for entry for special exhibitions or other special events, this is expected to be used when there is a cost associated with bringing to the Museum an exhibition or an event, which, without charging an entry fee, would otherwise prevent the Museum from showing the exhibition or putting on the event. While charges may be fixed for these special exhibitions or events, it is intended that the charges will not be so high as to prevent entry into the Museum, and there will be concession entry fees for those who qualify.

As the Museum has taken the approach of facilitating access to the national maritime collection by not fixing a fee for general access, or only fixing reasonable fees for access to special exhibitions or special events which would not otherwise have been possible had a fee not been imposed, it is promoting the right to take part in cultural life. As such, to the extent that the Regulations engage the right to take part in cultural life, they promote and are compatible with that right.          

Presumption of innocence

Article 14 of the ICCPR protects the right to be presumed innocent until proven guilty according to law.  It provides that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond a reasonable doubt. Article 14 of the ICCPR is engaged because the Regulations contain a strict liability offence which limits the presumption of innocence. 

Subsection 13(5) of the Regulation provides that a person commits an offence of strict liability if they cease to be a security officer, and do not return their identity card to the Director, within 14 days of so ceasing. This offence is a strict liability offence, recognising that access to identity cards by individuals who are not appointed security officers weakens the security of the Museum. The offence is intended to significantly enhance the prompt return of identity cards from persons who are no longer security officers, in order promote the safety of the public, staff members, and the safety of the national maritime collection. The penalty for conviction of the offence is 1 penalty unit.

Subsection 13(6) creates an exception to the offence in subsection 13(5), which provides that the offence does not apply if the identity card was lost or destroyed. The evidential burden on proving that the identity card was lost or destroyed is on the defendant. That is, in order for the exception to apply, the defendant must prove that there was a reasonable possibility that the card was lost or destroyed.   

While subsection 13(5) limits the presumption of innocence, it does so for legitimate reasons. In particular the strict liability nature of the offence is necessary to ensure individuals who are not appointed security officers do not have access to identity cards and hold themselves out as such, particularly given the significant powers security officers can exercise under the Regulations. Making the offence strict liability will act as a strong incentive for persons to return their identity cards to the Director within the 14 day period. 

While an offence of strict liability, it is open to the defendant to prove the exception to the offence if they can show that there was a reasonable possibility that the card was lost or destroyed. This could be discharged, for example, by providing evidence that the card was reported as being lost or destroyed. The existence of this exception to the offence is important, as it means that the person can prove they did not commit the offence.

 

It is also important to note that the penalty should a person be convicted of this offence is on the low end of the spectrum, being 1 penalty unit. This is another factor that goes to the reasonableness of the strict liability nature of the offence, that as a maximum, only 1 penalty unit can be imposed on a person.  

Finally, it is noted that subsections 10(2), 13(6), 25(2), 26(2) and 28(2) of the Regulation provide for exceptions to various offences. For the exceptions to apply, the defendant has the evidential burden of proof to prove the matters mentioned in the subsections. However, these exceptions do not relate to offences of strict liability which limit the presumption of innocence. That is, the prosecution is still required to prove fault and physical elements of the offences (and disprove any exceptions raised) beyond reasonable doubt. As such, the offences to which these exceptions relate, and the reversal of the evidential burden onto the defendant to prove an exception to the offence, do not limit the presumption of innocence.

For the reasons discussed above, to the extent that the strict liability offence in subsection 13(5) is a limitation on the presumption of innocence, it is reasonable, necessary and proportionate and in pursuit of a legitimate object. Accordingly, to the extent the Regulation engages the right to the presumption of innocence, it is compatible with that right.  

Conclusion

The Regulations are compatible with human rights. To the extent that they limit any human rights, those impacts are reasonable, necessary and proportionate. 

 


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