Wednesday, 18 March 2020
Bills
Constitution Amendment (Fracking Ban) Bill 2020
Bills
Constitution Amendment (Fracking Ban) Bill 2020
Statement of compatibility
Mr PALLAS (Werribee—Treasurer, Minister for Economic Development, Minister for Industrial Relations) (13:20): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Constitution Amendment (Fracking Ban) Bill 2020.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Constitution Amendment (Fracking Ban) Bill 2020.
In my opinion, the Constitution Amendment (Fracking Ban) Bill 2020 (Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The purpose of the Bill is to insert into the Constitution Act 1975 (Constitution Act) provisions that entrench existing legislated bans on hydraulic fracturing (fracking) and the exploration and mining of coal seam gas (coal seam gas activities). Those bans comprise: (i) a ban on fracking in s 8AD of the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) and s 16A of the Petroleum Act 1998 (Petroleum Act); and (ii) a ban on coal seam gas activities in s 8AC of the MRSDA. The Bill amends s 18(2) of the Constitution Act to require that any Bill that purports to remove or amend the legislated bans be passed by a special majority, being three-fifths of both Houses. This means that a special majority, rather than a simple majority, will be required to repeal, alter or vary the Bill. To the extent that this special majority requirement may engage or limit Charter rights, any limit is considered to be reasonable, on grounds that no less restrictive means is available to achieve the purpose that the limitation seeks to achieve: s 7(2)(e) - Being, constitutional entrenchment of the legislated bans.
For the reasons below, it is considered that the Bill does not limit any Charter rights. By entrenching existing provisions in the MRSDA and the Petroleum Act, the Bill only engages the Charter rights that are already engaged by those provisions.
Human Rights Issues
Privacy and reputation (section 13) and freedom of expression (section 15)
Section 13(1) of the Charter provides that a person has a right not to have his or her privacy, family or home or correspondence unlawfully or arbitrarily interfered with.
Section 15(2) of the Charter relevantly provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and regardless of the form of communication.
Clause 4 of the Bill inserts a new s 74D into the Constitution Act which prevents Parliament from repealing, altering or varying ss 8AD and 8AC of the MRSDA. Section 8AD prohibits fracking on any land. Section 8AC(1) makes it an offence for a person to explore for, or to mine, coal seam gas on any land. However, the s 8AC(1) offence will not apply if a person who holds a licence, and while exploring for a mineral in accordance with the terms of that licence, incidentally discovers or mines coal seam gas and reports that discovery in accordance with certain conditions set out in s 113A: s 8AC(2), MRSDA.
To utilise the s 8AC(2) exception, a person may be required to disclose personal information relating to the discovery. This may engage the Charter right to privacy.
However, it is considered that the Charter privacy right is not limited. Section 113A of the MRSDA clearly sets out the circumstances in which personal information could be required to be disclosed in relation to s 8AC(2). Any disclosure would therefore not be “unlawful or arbitrary” within the meaning of s 13(1) of the Charter.
By requiring a person to disclose their personal information, s 8AC(2) of the MRSDA may also engage the Charter right to freedom of expression.
However, the right is not limited. The requirement that persons disclose incidental discoveries of coal seam gas is a lawful one, being necessary to provide the State with information regarding coal seam gas resources and enforce s 8AC(2) of the MRSDA. Furthermore, the requirement only operates in limited circumstances–discoveries of coal seam gas.
Property rights (section 20)
Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law.
The Bill, which inserts provisions entrenching the existing legislated bans on fracking and coal seam gas activities into the Constitution Act, may engage the Charter right to not be deprived of property.
Participants in the resource industry or who carry out petroleum operations, for the purposes of the MRSDA and the Petroleum Act, may be natural persons. However, participants in the resource industry are most likely to be corporations, and therefore do not possess human rights under the Charter in accordance with s 6(1). For this reason, there is a low risk that s 20 of the Charter would be engaged.
If the participant is an individual, the relevant clauses of the Bill would not unlawfully limit the individual’s property rights, as any deprivation of property would be in accordance with law, in this instance, the licensing scheme that regulates the industry in the MRSDA and the Petroleum Act.
Rights in criminal proceedings (section 25)
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
Ordinarily, the presumption of innocence requires that the prosecution prove all matters beyond reasonable doubt. Section 25(1) of the Charter may be relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence.
The Bill entrenches in the Constitution Act strict liability offences in the MRSDA and Petroleum Acts that prohibit fracking or coal seam gas activities. The offence in s 8AC of the MRSDA contains an exception which places the evidential burden of proof on the accused.
The Bill may engage the Charter right to be presumed innocent, by including strict liability offences with a low standard of proof, to which the only exception reverses the burden of proof.
However, the Bill is not considered to limit the right. As above, persons engaging in resource exploration and extraction for the purposes of the MRSDA and the Petroleum Act would likely be corporations and therefore not have any Charter rights: s 6(1).
Alternately, if the accused party were an individual, any limitation on the right is considered reasonable and justifiable as they would be a resource industry participant for whom compliance with the provisions would not be difficult. Resource industry participants must maintain significant expertise in industry regulation, including the restrictions on fracking and coal seam gas activity. Furthermore, the penalty imposed (200 units) is lower than the penalties that would normally apply where a higher burden of proof is required. For example, under s 217 of the Petroleum Act, a failure to comply with a prohibition notice imposes a penalty of 600 units.
Finally, the evidential burden imposed by the exception in s 8AC(2) of the MRSDA is not considered to limit the right to be presumed innocent. The accused has only to prove that their discovery of coal seam gas was incidental, then the evidential burden will shift back to the prosecution.
Right not to be tried or punished more than once (section 26)
Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.
The offence provisions entrenched in the Constitution Act by clause 4 of the Bill (ss 8AC and 8AD of the MRSDA, s 16A of the Petroleum Act) are default penalty provisions. If a person (as distinct from a corporation) is convicted of one of these offences, they will be guilty of a further offence for each day the impugned conduct continues. The Bill may be seen to engage the Charter right to not be punished more than once.
However, the default penalty does not apply to an offence for which a person has already been convicted, but rather continued conduct. Therefore, the Charter right in s 26 is not engaged.
Tim Pallas MP
Treasurer
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
I am introducing the Bill to the House on behalf of the Premier, who is the Minister responsible for the Constitution Act 1975 (Constitution Act).
The purpose of this Bill is to insert the existing legislated bans on fracking and coal seam gas activities in the Constitution Act. The Bill fulfils the Government’s 2018 election commitment to “enshrine our legislated ban on fracking in the Constitution of Victoria”. This will protect Victoria’s prime agricultural land and the farmers and communities that rely on it. The success of this industry depends on Victoria’s reputation for producing some of the cleanest and greenest food and fibre in the world.
The existing legislated bans comprise two distinct prohibitions.
The first is a ban on the carrying out of hydraulic fracturing (fracking). Fracking is a process to extract oil or gas by injecting fluids, including chemicals, down a well at high pressure to fracture the rock formation and help the oil or gas to flow out of the rock and into the well. Some chemicals used in fracking have been associated with environmental and health impacts and have been a significant driver of community concern. The fracking ban is set out in s 8AD of the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) and s 16A of the Petroleum Act 1998 (Petroleum Act).
The second is a ban on the exploration for and mining of coal seam gas. Coal seam gas is a type of unconventional gas that occurs naturally in coal seams and is trapped underground by water pressure. Extraction of coal seam gas requires the dewatering of coal seams to release the gas and sometimes incorporates fracking to make the extraction more economic. Coal seam gas extraction presents significant environmental challenges associated with waste water disposal, ground water contamination, and ground subsidence. Coal seam gas exploration and mining is banned by s 8AC of the MRSDA.
The bans were introduced into the MRSDA and the Petroleum Act by the Resources Legislation Amendment (Fracking Ban) Act 2017. The purpose of the bans is to prohibit onshore unconventional gas activity in Victoria.
The Bill will amend the Constitution Act by introducing a new Part, making it more difficult for a future Parliament to repeal, alter, or vary the existing legislated bans (clause 4).
The Bill proposes to entrench the existing legislated bans by amending the Constitution Act to provide that the new Part may only be repealed, altered or varied if the third reading of a repealing Act is passed by a special majority of all members of the Legislative Assembly and Legislative Council. A special majority is three-fifths of each House of Parliament.
The Bill will also make it more difficult for a future Parliament to repeal, alter or vary the existing legislative bans, including attempts to: reduce the current penalty for breaching the bans; narrow the class of persons liable to a penalty for breaching the bans; or reduce the geographical area to which the bans apply.
I commend the Bill to the house.
Mr WELLS (Rowville) (13:20): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 1 April.