Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019 [2019] AUSStaCSBSD 27 (28 March 2019)

• Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019
• Reversal of evidential burden of proof81
• Strict liability offences82

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Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions)
Bill 2019

Purpose	This bill seeks to amend the Competition and Consumer Act 2010 to make it an offence to supply or offer commercial goods to a consumer that include Indigenous cultural expression unless it is supplied by, or in accordance with a transparent arrangement with an Indigenous artist or relevant Indigenous community
Sponsor	Senator Sarah Hanson-Young
Introduced	Senate on 12 February 2019

Reversal of evidential burden of proof^[81]

1.102 A number of provisions in the bill seek to reverse the evidential burden of proof in relation to a person trading, supplying or offering to supply a good to a person that includes Indigenous cultural expressions.

1.103 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.

1.104 While in these instances 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 these instances, the explanatory memorandum provides no such justification.

1.105 The committee notes its scrutiny concerns regarding the reversal of the evidential burden of proof. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

Strict liability offences^[82]

1.106 The bill seeks to insert proposed section 50AB into the Competition and Consumer Act 2010. Proposed subsection 50AB(1) makes it an offence to supply, or offer to supply, a good to a person that includes an Indigenous cultural expression or to create, provide or rely on a document for the purposes of subsection 50A(3) that the person knows is false. Proposed subsection 50AB(6) makes the offence in subsection 50AB(1) one of strict liability. The explanatory memorandum provides no justification as to why it is proposed to make the offence one of strict liability.

1.107 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.

1.108 The committee notes its scrutiny concerns regarding the application of strict liability. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

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[81] Proposed subsections 50A(4) and (6), and 50AB(5). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[82] Proposed subsection 50AB(6). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).