Treasury Laws Amendment (Major Bank Levy) Bill 2017 [2017] AUSStaCSBSD 194 (14 June 2017)

• Treasury Laws Amendment (Major Bank Levy) Bill 2017
• Reversal of evidential burden of proof 103
• Incorporation of external materials existing from time to time105

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Treasury Laws Amendment (Major Bank Levy) Bill 2017

Purpose	This bill seeks to amend various Acts in relation to taxation to: • set out how to index the levy's $100 billion threshold to growth in nominal Gross Domestic Product; • allow the Australian Prudential Regulation Authority (APRA) to collect the data necessary to calculate the levy; • allow APRA to provide information relating to the major bank levy to the Australian Taxation Office (ATO); • ensure that when the major bank levy is payable to the ATO the ordinary collection and recovery provisions apply; and • introduce an anti-avoidance provision to protect the integrity of the levy
Portfolio	Treasury
Introduced	House of Representatives on 30 May 2017
Scrutiny principle	Standing Order 24(1)(a)(i), (iv) and (v)

Reversal of evidential burden of proof ^[103]

1.160 Section 56(2) of the Australian Prudential Regulation Authority Act 1998 makes it an offence to disclose information acquired without authorisation. The offence carries a maximum penalty of imprisonment for 2 years. Proposed subsection 56(5D) provides an exception (offence specific defence) to this offence, stating that the offence does not apply if the production by a person of a document that was given to the Australian Prudential Regulation Authority (APRA) under section 13 of the Financial Sector (Collection of Data) Act 2001 is to the Commissioner of Taxation for the purposes of the Major Bank Levy Act 2017.

1.161 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.

1.162 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.

1.163 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), 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 subsection 56(5D) has not been addressed in the explanatory materials.

1.164 As the explanatory materials do not address this issue, the committee requests the Treasurer’s advice as to why it is proposed to use an offence-specific defence (which reverses the evidential burden of proof) in this instance. 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.^[104]

Incorporation of external materials existing from time to time^[105]

1.165 Section 13 of the Financial Sector (Collection of Data) Act 2001 provides that APRA may determine in writing reporting standards that are required to be complied with by certain financial sector entities. Proposed subsection 13(2C) provides that a reporting standard may make provision in relation to matters relating to the reporting of amounts for the purposes of the Major Bank Levy Act 2017, by applying, adopting or incorporating any matter contained in any other instrument or writing as in force or existing from time to time. The explanatory memorandum provides no explanation as to what type of instruments or documents may need to be applied, adopted or incorporated in a reporting standard and does not explain why it would be necessary for the material to apply as in force or existing from time to time.

1.166 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

1.167 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

1.168 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[106] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.169 Noting the above comments, the committee requests the Treasurer's advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under subsection 13(2C), whether these documents will be made freely available to all persons interested in the law and why it is necessary to apply the documents as in force or existing from time to time, rather than when the document is first made.

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[103] Schedule 1, item 1, proposed subsection 56(5D). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

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

[105] Schedule 1, item 3, proposed subsection 13(2C). The committee draws Senators’ attention to this provision pursuant to principles 1(a)(iv) and (v) of the committee’s terms of reference.

[106] Joint Standing Committee on Delegated Legislation, Parliament of Western Australia, Access to Australian Standards Adopted in Delegated Legislation, June 2016.