Inspector-General of Live Animal Exports Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 119 (16 October 2019)

• Inspector-General of Live Animal Exports Bill 2019
• Significant matters in delegated legislation 21
• Reversal of the evidential burden of proof24
• No requirement to table or publish reports28

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Inspector-General of Live Animal Exports Bill 2019

Purpose	This bill seeks to establish the role of an independent Inspector-General of Live Animal Exports to oversee the regulator of live-stock exports: the Department of Agriculture
Portfolio	Agriculture
Introduced	Senate on 31 July 2019
Bill status	Received Royal Assent on 2 October 2019

Significant matters in delegated legislation ^[21]

2.67 In Scrutiny Digest 5 of 2019 the committee requested the minister's advice as to why it is considered necessary and appropriate to leave significant elements of the review process and the content of reports to delegated legislation.^[22]

Minister's response^[23]

2.68 The minister advised:

Section 10(4) provides that the rules may make provision for the conduct of reviews and the content of reports. The rule making power is set out in clause 41 of the Bill. This enables the Minister to prescribe any additional requirements relating to the conduct of reviews and the content of reports.
It is intended that the rules will include requirements regarding the Inspector-General's review program; when reviews are to be conducted; the process for inviting submissions and their publication; requesting of assistance from the department; the handling of documents; the consideration of all evidence provided; the reporting on reviews; the exclusion of certain material from reports and the inclusion of criticism in reports.
Matters relating to these issues have been dealt with under delegated legislation for many years in similar circumstances. The rules will mirror the delegated legislation for the Inspector-General of Biosecurity under the Biosecurity Regulation 2016.
In this case delegated legislation is necessary and justified by its facility for adjusting administrative detail without undue delay, its flexibility in matters likely to change regularly or frequently and its adaptability for other matters such as those of technical detail. Delegated legislation is the appropriate method through which to work out the application of the law in greater detail.

Committee comment

2.69 The committee thanks the minister for this response, and notes the minister's advice regarding the matters that may be included in rules. The committee also notes the minister's advice that similar matters have been included in delegated legislation for a number of years, and the advice that the use of delegated legislation is justified by its facility for adjusting administrative detail without undue delay, its flexibility in matters likely to change regularly or frequently, and its adaptability for matters of technical detail.

2.70 While noting this advice, the committee emphasises that it does not generally consider flexibility, or consistency with other regulatory regimes, to be sufficient justification for including significant matters in delegated legislation. Rather, the committee considers that delegated legislation should generally include only technical, procedural or administrative matters.

2.71 It is unclear to the committee that the matters proposed to be included in rules would be only technical or administrative in nature. For example, when reviews are to be conducted, how reviews are to be reported, and the inclusion of criticism in review reports all appear to be substantive matters that may be more appropriate for parliamentary enactment. The committee is also concerned that there appears to be only limited guidance on the face of the bill as to the matters that may be included in rules. In this respect, even if it were accepted that the matters currently proposed for inclusion in the rules are administrative or technical in nature, there would be nothing to prevent the minister from including more significant matters in delegated legislation if they see fit to do so.

2.72 Finally, the committee also reiterates its concerns that by allowing the rules to make provision for the content of review reports, the bill would permit the minister to limit or control the information that is made public. This may significantly reduce the transparency of the review process.

2.73 In light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment on this matter.

Reversal of the evidential burden of proof^[24]

2.74 As the explanatory materials do not address this issue, the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse 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.^[25]

Minister's response

2.75 The minister advised:

The Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide also notes that-a reverse burden provision is more readily justified if:

• the matter in question is not central to the question of culpability for the offence;

• the penalties are at the lower end of the scale; and

• the conduct proscribed by the offence poses a grave danger to public health or safety.

An additional factor to consider is whether the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden).
With regard to the offences raised by the Committee, it is necessary that the defendant bears the evidential burden in these sections in order to achieve the legitimate objectives of ensuring the objects of the Act are met. These clauses are reasonable and proportionate to the legitimate objectives because the defendant will have the information or knowledge that is evidence of the exception (i.e. that they were authorised by law to undertake the conduct).
These sections provide an exception to the relevant offence where a defendant has:

• acted in good faith or in purported compliance with the Act or rules (s31(2));

• the information is not false or misleading in a material particular (s34(2) and (s35(2));

• the information did not omit a matter or thing without which the information is misleading in a material particular (s34(3)); or

• the official receiving the information did not take reasonable steps to inform the person that they may be liable to a civil penalty (s34(4)).

The defendant bears the evidential burden with respect to these exceptions. Whether someone has acted in good faith, whether a document is misleading or whether or not a person has been informed that they may be liable to a civil penalty provision for contravening this clause is something peculiarly within the knowledge of that person.
It would be difficult for the prosecution to provide evidence that the person is not covered by an exemption when evidence relevant to whether an exemption applies can only be known by that person. It would also be significantly more difficult and costly for the prosecution to provide evidence that a document is false or misleading than for a defendant to provide evidence of the matter themselves.

Committee comment

2.76 The committee thanks the minister for this response, and notes the minister's advice that the offence-specific defences and exceptions to civil penalty provisions are peculiarly within the knowledge of the defendant. The committee also notes the minister's advice that it would be difficult for the prosecution to provide evidence that a person is not covered by a defence or exception, as relevant evidence may only be known to the defendant.

2.77 With regard to the offence-specific defence in subclause 31(2), the committee acknowledges that whether a person is acting in good faith and in purported compliance with the law may be peculiarly within that person's knowledge. However, as noted in the minister's response, an offence-specific defence may be more readily justified where associated penalties are 'at the lower end of the scale'.^[26] In this case, the offence is punishable by two years' imprisonment, 120 penalty units, or both.

2.78 With regard to subclauses 34(2), 34(3) and 35(2), the committee notes that whether information is false or misleading in a material particular may, in some circumstances, be peculiarly within the defendant's knowledge. However, whether information is false or misleading may also be a factual matter which could be established through reasonable inquiries. Additionally, as noted in the minister's response, defences and exceptions may be more readily justified where relevant matters are not central to the question of culpability. In this instance, it appears that the matters in the exceptions would be central to the question of culpability, noting they essentially replicate elements of the associated civil penalty provisions.^[27]

2.79 Finally, with regard to the exception in subclause 34(4), it appears that whether an official took reasonable steps to inform the defendant of the potential for civil liability would be known to that official. While the committee acknowledges that it may be difficult for persons other than the defendant and the official to establish whether the official took such steps, it is not clear that this matter would be peculiarly within the knowledge of the defendant.

2.80 In light of these matters, it remains unclear to the committee that it is appropriate to reverse the evidential burden of proof in relation to the offence-specific defences and exceptions in subclauses 31(2), 34(2) to (4) and 35(2). In this regard, it would have been useful had the explanatory memorandum and/or the minister's response provided further information in relation to this matter.

2.81 In light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment on this matter.

No requirement to table or publish reports^[28]

2.82 In Scrutiny Digest 5 of 2019 the committee requested the minister's advice as to why there is no requirement for either review reports or annual reports to be tabled in Parliament and why there is no requirement for an annual report to be made publicly available, noting the potential detrimental impact on parliamentary scrutiny.^[29]

Minister's response

2.83 The minister advised:

Section 10(3) states that the Inspector-General must publish a report on each review conducted. The rules to be made under the Inspector-General of Live Animal Exports Act 2019 will require that, as soon as practicable, each finalised review report will be available online on the
Inspector-General's website. This level of transparency is appropriate and consistent with the activities of the Inspector-General of Biosecurity.
Section 40(1) states that the Inspector-General must, as soon as practicable after the end of each financial year, prepare and give the Minister a report on the activities of the Inspector-General during that financial year (i.e. number of reviews under section 10 started and completed, and other information considered appropriate). It is anticipated that the Minister will report to Parliament and each annual report will be available on line on the Inspector-General's website. This level of transparency is appropriate and consistent with the activities of the Inspector-General of Biosecurity.

Committee comment

2.84 The committee thanks the minister for this response, and notes the minister's advice that rules made under the Inspector-General of Live Animal Exports Act 2019 will require review reports to be made available online. The committee also notes the minister's advice that the Inspector-General would be required to provide an annual report to the minister, and the advice that it is anticipated that the minister will report to Parliament and that annual reports will be available online.

2.85 While noting this advice, the committee remains concerned that there is no express requirement that review reports be tabled in Parliament. The committee takes this opportunity to reiterate that, in general, review reports of Commonwealth entities should be tabled in Parliament and be made publicly available. Tabling the documents in Parliament ensures parliamentarians are alerted to their existence, and provides opportunities for debate that may not otherwise be available.

2.86 In light of the fact the bill has now passed both Houses of Parliament, the committee makes no further comment on this matter.

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[21] Clause 10. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[22] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, pp. 8-9.

[23] The minister responded to the committee's comments in a letter dated 26 September 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[24] Clauses 31, 34 and 35. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[25] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, pp. 9-11.

[26] See also Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[27] For example, subclause 34(2) provides that subclause 34(1) does not apply as a result of proposed subparagraph 34(1)(b)(i) if the relevant information is not false or misleading in a material particular. Proposed sub-clause 34(1)(b)(i) provides that a person is liable to a civil penalty if they provide information to the Inspector-General, knowing that the information is false or misleading.

[28] Clauses 10 and 40. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[29] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2019, p. 11.