Electoral and Other Legislation Amendment Bill 2017 [2017] AUSStaCSBSD 128 (10 May 2017)

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Purpose	This bill seeks to amend various Acts in relation to electoral, broadcasting and criminal matters to: • amend authorisation requirements in relation to political, electoral and referendum communications; • replace the current criminal non-compliance regime with a civil penalty regime to be administered by the Australian Electoral Commission; • amend the Criminal Code to criminalise conduct amounting to persons falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body; and • create a new aggravated offence where a person engages in false representation
Portfolio	Special Minister of State
Introduced	House of Representatives on 30 March 2017

Significant matters in delegated legislation^[38]

1.53 Proposed section 321D specifies the requirements for what constitutes an 'electoral matter', which is defined in the Commonwealth Electoral Act 1918 as matter which is intended or likely to affect voting in an election. Proposed subsections (3)–(4) specify exceptions to the requirement for particulars to be notified. Proposed subsection 321D(7) empowers the Electoral Commissioner to determine, by legislative instrument, further exceptions to the operation of the provision. These exceptions appear to raise significant policy matters for inclusion in delegated legislation.

1.54 The committee's view is that significant matters should generally be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.55 The explanatory memorandum, in justifying these powers, states that in making an instrument, the Electoral Commissioner is 'required' to exercise the power in light of the objects of the new Part as set out in section 321C, but later notes that the Commissioner is 'expected' to take into account the consistency of the instrument with the objects specified in section 321C.^[39] There does not appear to be anything in the legislation that would require the Electoral Commissioner to take into account the objects of the Part when making the instrument.

1.56 The explanatory memorandum also states that the Electoral Commissioner, in making the instrument, 'is expected to consult with relevant agencies, as required by section 17 of the Legislation Act'.^[40] However, the committee notes that section 17 of the Legislation Act 2003 does not strictly require that consultation be undertaken before an instrument is made. Rather, it requires that a rule-maker is satisfied that any consultation, that he or she thinks is appropriate, is undertaken. In the event that a rule maker does not think consultation is appropriate, there is no requirement that consultation be undertaken. In addition, the Legislation Act 2003 provides that consultation may not be undertaken if a rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation does not occur cannot affect the validity or enforceability of an instrument.^[41]

1.57 Where the Parliament delegates its legislative power in relation to significant regulatory schemes the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument.

1.58 The committee requests the Minister's advice as to whether the bill could be amended to include a specific obligation on the Electoral Commissioner:

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

Reversal of evidential burden of proof^[42]

1.59 Proposed section 150.1 of the Criminal Code would make it offence for a person to falsely represent that the person is, or is acting on behalf of, or with the authority of, a Commonwealth body (and makes it a higher level offence to do so with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function). Subsection 150.1(4) provides that if the Commonwealth body is fictitious, these offence provisions do not apply unless a person would reasonably believe that the Commonwealth body exists. This would appear to provide an exception to the relevant offences.

1.60 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.61 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, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.62 In this instance it appears that the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), and as such the committee expects any such reversal of the evidential burden of proof to be justified. The reversal of the evidential burden of proof in proposed section 150.1(4) has not been addressed in the explanatory materials.

1.63 The committee notes that in this instance this provision appears to require the defendant to raise evidence that suggests a reasonable possibility that 'a person would reasonably believe that the Commonwealth body exists'. This seems to be an objective fact and not one that is peculiarly within the knowledge of the defendant.

1.64 As the explanatory materials do not address this issue, the committee requests the Minister's advice as to why it is proposed to use what appears to be an offence-specific defence (which reverses the evidential burden of proof) in this instance, and what is the justification for doing so. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[43]

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

[43] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests