House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for the Environment and Energy, the Hon Josh Frydenberg MP)

Statement of Compatibility with Human Rights

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

Petroleum and Other Fuels Reporting Bill 2017
Petroleum and Other Fuels Reporting (Consequential Amendments and Transitional Provisions) Bill 2017

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

Petroleum and Other Fuels Reporting Bill 2017

Overview of the Bill

The Petroleum and Other Fuels Reporting Bill 2017 (the Bill) would establish a mandatory reporting regime to enable the production of statistics on petroleum, other fuels such as biofuels, and fuel-related products.

The Australian Government has published statistics on petroleum, other fuels and fuel-related products for over forty years. These statistics are used by government agencies, businesses and international organisations to monitor, analyse and forecast trends in the fuel market. In recent years, the proportion of businesses participating in the voluntary survey used to compile the statistics has declined, reducing the reliability and usefulness of the statistics. This has increased the risks for business associated with new investments, reduced the capacity of agencies to monitor energy security, and decreased Australia's capacity to demonstrate compliance with the International Energy Agency's oil stockholding obligation.

The Bill empowers the Minister for the Environment and Energy to require persons to report fuel information to the Secretary of the Department of the Environment and Energy (the Department). The specifics of the reporting requirement would be set out in Ministerial Rules.

The Bill provides a range of safeguards to ensure that personal and commercial-in-confidence information provided to the Secretary is protected. This includes a prohibition on the recording, use or disclosure of such information. If this prohibition is breached, a penalty of up to two years imprisonment may apply to Departmental employees, consultants and contractors. The Bill provides several defences and exemptions to this prohibition so that appropriate and authorised recording, use and disclosure of protected information can take place.

Human rights implications

This Bill engages the following rights:

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Right to Privacy under Article 17 of the International Covenant on Civil and Political Rights.

Clause 11 of the Bill empowers the Minister for the Environment and Energy to require a person to report fuel information to the Secretary. It is envisioned that some of the information required to be reported would be personal information such as the name of the person submitting the report. Failure to comply with this requirement would make a person liable for a civil penalty.

This collection of personal information is necessary to ensure the orderly operation of the legislative scheme, including its enforcement, so that the public benefits of the scheme can be realised.

The Bill provides a range of protections for personal information to ensure that information collected under the mandatory reporting requirement is used appropriately and not disclosed for purposes unrelated to its collection.

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Right to Freedom of Expression under Article 19 of the International Covenant on Civil and Political Rights.

To protect personal and commercial-in-confidence information collected under mandatory reporting, clause 20 of the Bill prohibits the recording, use and disclosure of this information by employees, contractors or consultants engaged by the Department unless it is authorised by law. It is important to note that clauses 20 to 30 contain a number of authorisations to enable the orderly operation of the reporting and publication regime. This includes subclause 20(4) which makes clear that the prohibition does not apply to disclosures which fall within the constitutional doctrine of implied freedom of political communication.

Unauthorised use, recording or disclosure of protected information by Departmental employees, contractors or consultants (including those who have ceased their employment or engagement) would be a criminal offence punishable by up to two years imprisonment.

The Secretary is also granted a discretionary power under clauses 24 and 30 to impose conditions on other entities when he or she discloses information to them. It is envisioned that the Secretary would, in certain circumstances, use this power to prohibit further recording, use or disclosure of protected information. It would also be a criminal offence punishable by up to two years imprisonment to breach a condition imposed by the Secretary under clauses 24 and 30.

The restrictions on record-making, publication and disclosure engage the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights. Article 19 permits restrictions on freedom of expression as provided by law when necessary to protect public order, which includes the protection of confidential information. The restrictions on record-making, publication and disclosure are compatible with the Article as they are required to ensure that persons required to report under this Bill can be confident that their sensitive information will be protected and treated appropriately when it is used by the Department or another entity.

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Right to the Presumption of Innocence under Article 14(2) of the International Covenant on Civil and Political Rights.

To protect personal and commercial-in-confidence information collected under mandatory reporting, clause 20 of the Bill prohibits the recording, use and disclosure of this information by employees, contractors or consultants engaged by the Department unless it is authorised by law. A breach of clause 20 is a criminal offence punishable by up to two years imprisonment.

Subclause 20(2) would provide a defence to the offence in clause 20 where a person records, uses or discloses protected information if the conduct is authorised or in compliance with a requirement under a Commonwealth, state or territory law. Subclause 20(3) would provide a defence to the offence in clause 20 where a person records, uses or discloses commercial-in-confidence information if the person did not know the information was commercial-in-confidence.

The defendant would bear the evidentiary burden of proving that the elements of subclause 20(2) or 20(3) are satisfied. This is a reversal of the onus of proof. The Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where the matter is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

In the case of subclause 20(2), it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. This is because it would require the prosecution to prove that no Commonwealth, state or territory law authorised the disclosure. The defendant in contrast would only be required to point to the specific law which they relied upon as authorisation for their conduct.

In the case of subclause 20(3), whether the defendant was aware that the information was commercial-in-confidence is a matter that is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to prove the defendant's state of mind.

Petroleum and Other Fuels Reporting (Consequential Amendments and Transitional Provisions) Bill 2017

The Petroleum and Other Fuels Reporting (Consequential Amendments and Transitional Provisions) Bill 2017 (the Consequential Amendments) would enable the Australian Competition and Consumer Commission (ACCC) and the Australian Taxation Office (ATO) to share information with the Department. This information would be used to compile statistics instead of requiring companies to re-report the information to the Department. This will reduce the regulatory burden associated with mandatory reporting. The shared information could also be used to monitor compliance with the reporting obligation contained at section 11 of the Bill. For example, a company paying excise on transport fuels would generally be expected to also report wholesaling under the reporting obligation in the Bill.

The information shared by the ACCC and ATO with the Department could be personal or commercial-in-confidence information, and would be used for the same purposes and subject to the same protections as protected information obtained directly from businesses. Therefore, the analysis in relation to the engagement and limitation of human rights for the Bill is also relevant to the Consequential Amendments.

Conclusion

The Bills are compatible with human rights because to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.