Freedom of Speech Legislation Amendment (Security) Bill 2018 [2018] AUSStaCSBSD 182 (15 August 2018)

• Freedom of Speech Legislation Amendment (Security) Bill 2018
• Reversal of evidential burden of proof 44

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Freedom of Speech Legislation Amendment (Security) Bill 2018

Purpose	This bill seeks to amend various Acts to remove certain restrictions on speech
Sponsor	Senator David Leyonhjelm
Introduced	Senate on 27 June 2018

Reversal of evidential burden of proof ^[44]

1.53 A number of provisions in the bill seek to amend existing offence provisions relating to the unauthorised disclosure of information. In doing so, the bill seeks to apply existing offence-specific defences to new or modified offences, or to insert new offence-specific defences and apply them to new or modified offences. As a result of subsection 13.3(3) of the Criminal Code Act 1995, offence-specific defences reverse the evidential burden of proof, such that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.54 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, interfere with this common law right.

1.55 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. In this instance, the explanatory memorandum restates the effect of the proposed reversals of the evidential burden of proof, but does not provide any explanation of why it is appropriate to reverse the evidential burden in relation to the relevant matters in each case.^[45]

1.56 The committee notes that the Guide to Framing Commonwealth Offences^[46] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

1.57 It is not apparent that the matters included in the offence-specific defences^[47] in the bill would meet these criteria. Consequently, they appear to be matters that are more appropriately included as elements of the relevant offences.

1.58 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to matters that do not appear to be peculiarly within the knowledge of the defendant.

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[44] Schedule 1, items 6-7, 12-14, 18-20, 32, 35-40 and 48-50. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[45] Explanatory memorandum, pp. 5-6, 8-9, 11, 14-15, 16-18 and 20-21.

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

[47] Such as whether information has already been communicated, or made available, to the public, or whether information relates to an operation that has concluded, does not relate to the identity of a participant in the operation, concerns corruption or misconduct in relation to the operation, or whether notice was given 24 hours prior to the disclosure of the information.