Criminal Code Amendment (Agricultural Protection) Bill 2019 [2019] AUSStaCSBSD 50 (24 July 2019)

• Criminal Code Amendment (Agricultural Protection) Bill 2019
• Reversal of the evidential burden of proof 40

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Criminal Code Amendment (Agricultural Protection) Bill 2019

Purpose	This bill seeks to amend the Criminal Code Act 1995 to introduce two new offences relating to the incitement of trespass or property offences on agricultural land
Portfolio	Attorney-General
Introduced	House of Representatives on 4 July 2019

Reversal of the evidential burden of proof ^[40]

1.58 The bill seeks to insert new sections 474.46 and 474.47 into the Criminal Code Act 1995, to make it an offence to use a carriage service for inciting either trespass or property damage or theft on agricultural land. Both offences contain offence-specific defences, which provide that the offence does not apply if:

• the material relates to a news report, or a current affairs report that is in the public interest and made by a person working in a professional capacity as a journalist; or

• the person engaging in the conduct is not subject to any civil or criminal liability for the conduct under a law of the Commonwealth, a State or a Territory.

1.59 In making these offence-specific defences the defendant will bear the evidential burden of proof.^[41] 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.

1.60 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 nevertheless expects any such reversal of the evidential burden of proof to be justified. In this instance, the explanatory memorandum notes in relation to each offence-specific defence:

This exemption is an offence-specific defence as described in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. In line with that guide, an offence-specific defence is appropriate in this circumstance as this is not a matter that is central to the question of culpability for the offence.^[42]

1.61 In addition, in relation to the offence-specific defences for journalists working in the public interest, the explanatory memorandum notes the defence is appropriate 'as the defendant would be best placed to raise evidence that they are working in a professional capacity as a journalist'.^[43] In relation to the offence-specific defences for conduct not subject to liability under other laws, the explanatory memorandum notes the defence is appropriate 'as the defendant would be best placed to raise evidence that their conduct was lawfully protected under a law of the Commonwealth, State or Territory'.^[44]

1.62 The committee notes that the Guide to Framing Commonwealth Offences 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.^[45]

The explanatory memorandum does not address how any of the offence specific defences contained in the bill are both peculiarly within the knowledge of the defendant and significantly more difficult and costly or the prosecution to disprove than for the defendant to establish the matter. For example, no explanation is proved as to why the question of whether a news or current report is in the public interest would be a matter that is peculiarly within the knowledge of the defendant. Furthermore, the explanatory memorandum does not explain why it would be significantly more difficult and costly for the prosecution to disprove any of the matters than for the defendant to establish.

1.63 The committee requests the Attorney-General's detailed justification as to the appropriateness of including the specified matters as offence-specific defences. The committee considers it may be appropriate if these clauses were amended to provide that these matters form elements of the relevant offences, and requests the minister's advice in relation to this matter.

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[40] Schedule 1, item 2, proposed sections 474.46 and 474.47. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[41] 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.

[42] Explanatory memorandum pp. 13 and 17.

[43] Explanatory memorandum pp. 13 and 17.

[44] Explanatory memorandum pp. 13 and 17.

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