National Sports Tribunal Bill 2019 [2019] AUSStaCSBSD 65 (31 July 2019)

• National Sports Tribunal Bill 2019
• Reversal of evidential burden of proof 69

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National Sports Tribunal Bill 2019

Purpose	This bill seeks to establish the National Sports Tribunal as a specialist independent tribunal to provide a system of sports dispute resolution
Portfolio	Youth and Sport
Introduced	House of Representatives on 24 July 2019

1.73 The committee commented on a similar bill in the previous Parliament in Scrutiny Digest 2 of 2019 and reiterates the following concerns in relation to the current bill.

Reversal of evidential burden of proof ^[69]

1.74 Clause 72 of the bill provides that it is an offence if an entrusted person discloses or otherwise uses protected information, carrying a maximum penalty of two years imprisonment. Subclauses 72(2) to (4) provide a number of exceptions (offence-specific defences) to this offence. These include where the disclosure:

• is for the purposes of the Act, rules, the performance of the functions or powers of the CEO or in a person's capacity as an entrusted person;

• has been consented to by the person to whom the information relates; or

• contains information that has already been lawfully made available to the public.

1.75 In these instances the evidential burden of proof would be reversed by the use of offence-specific defences.^[70] 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.

1.76 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 states:

The placement of the evidential burden on the defendant can be justified in this instance because it will not reasonably be possible for a prosecution to disprove every conceivable source of authority in many cases, when that information is within the knowledge of the entrusted person who made the disclosure. In the event that the prosecution was required, in such circumstances, to disprove that the disclosure was unlawful, it would be significantly more difficult and costly for the prosecution to disprove the matter.^[71]

1.77 The committee notes that the Guide to Framing Commonwealth Offences^[72] 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.

1.78 In this case, it is not apparent from the explanatory materials that matters such as whether the disclosure was for the purpose of the Act or in accordance with obligations under yet-to-be-made rules, or whether the information has already been lawfully made public, are matters that would be peculiarly within the defendant's knowledge, and difficult or costly for the prosecution to establish.

1.79 The committee requests the minister'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 offence, and requests the minister's advice in relation to this matter.

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[69] Clause 72. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[70] 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.

[71] Explanatory memorandum, p 47.

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