Criminal Code Amendment (Protecting Minors Online) Bill 2017 [2017] AUSStaCSBSD 126 (10 May 2017)

• Criminal Code Amendment (Protecting Minors Online) Bill 2017
• Reversal of legal burden of proof 32

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Criminal Code Amendment (Protecting Minors Online) Bill 2017

Purpose	This bill seeks to amend the Criminal Code Act 1995 to introduce an offence to criminalise acts to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16
Portfolio	Attorney-General
Introduced	House of Representatives on 30 March 2017

Reversal of legal burden of proof ^[32]

1.40 The bill seeks to make it an offence for a person to do any act in preparation for doing or planning to do certain harmful acts to persons under 16 years of age, where the offender is at least 18 years of age and the act is done using a carriage service. This is subject to a penalty of up to 10 years imprisonment.

1.41 The offence provision is proposed to be inserted into Subdivision F of Division 474 of the Criminal Code Act 1995. As such, the presumption in existing section 475.1B of the Criminal Code will apply. This provision provides that if a physical element of a relevant offence consists of a person using a carriage service to engage in particular conduct and the prosecution proves beyond reasonable doubt that the person engaged in that conduct, it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. A defendant bears a legal burden of proof in relation to this matter.

1.42 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove one or more elements of an offence, interferes with this common law right.

1.43 As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of people affected being the paramount consideration.

1.44 The explanatory memorandum states that the requirement that a carriage service was used provides the relevant connection to the Commonwealth's telecommunications power under the Australian Constitution.^[33] The statement of compatibility gives a justification for imposing a presumption which reverses the legal burden of proof:

The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.
The Bill relies on the Commonwealth's telecommunications power under the Australian Constitution. Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth than those that do not.^[34]

1.45 The committee notes that the presumption is intended to address problems regarding evidence that a carriage service was used, and notes that this appears to provide a justification as to why the evidential burden of proof needs to be reversed, but not necessarily why the legal burden of proof needs to be reversed. However, the committee also notes that the relevant requirement (that the conduct engaged in uses a carriage service) is a jurisdictional requirement that does not relate to the substance of the offence.

1.46 Noting the importance of the right to be presumed innocent until proven guilty and the impact reversing the legal burden of proof has on this right, but also noting that the reversal applies to a jurisdictional element of the offence (rather than the substance of the offence), the committee draws this matter to the attention of Senators and leaves to the Senate as a whole the appropriateness of reversing the legal burden of proof.

The committee leaves the question of whether the proposed approach is appropriate to the Senate as a whole.

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[32] Schedule 1, item 2.

[33] Explanatory memorandum p. 12.

[34] Statement of compatibility, p. 6.