Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 [2017] AUSStaCSBSD 62 (22 March 2017)

• Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017
• Reversal of evidential burden of proof 21
• Strict liability23

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Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017

Purpose	This bill seeks amend Competition and Consumer Act 2010 to prevent non-First Australians and foreigners from benefitting from the sale of Indigenous art, souvenir items and other cultural affirmations
Sponsor	Mr Bob Katter MP
Introduced	House of Representatives on 13 February 2017

Reversal of evidential burden of proof ^[21]

1.28 Proposed section 168A(1) makes it an offence to supply, or offer to supply, a thing in trade or commerce which includes an indigenous cultural expression. Proposed subsection 168A(2) provides an exception (offence specific defence) to this offence, stating that the offence does not apply if the thing is supplied by, or in accordance with an arrangement with a relevant indigenous community and artist. The offence carries a maximum penalty of $25,000 for an individual ($200,000 for a body corporate).

1.29 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.

1.30 While 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.

1.31 As neither the statement of compatibility nor the explanatory memorandum address this issue, the committee requests the Member’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, Infringement Notices and Enforcement Powers.^[22]

Pending the Member'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.

Strict liability^[23]

1.32 Proposed subsection 168A(3) makes the offence in subsection 168A(1) a strict liability offence. The explanatory memorandum provides no justification as to why the offence is one of strict liability.

1.33 In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply. The committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

1.34 The committee requests a detailed justification from the Member for the proposed strict liability offence with reference to the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[24]

Pending the Member'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.

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[21] Item 4, subsection 168A(2).

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

[23] Item 4, subsection 168A(3).

[24] Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.