Criminal Code Amendment (Agricultural Protection) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 84 (11 September 2019)

• Criminal Code Amendment (Agricultural Protection) Bill 2019
• Reversal of the evidential burden of proof 28

---

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
Bill status	Before the Senate

Reversal of the evidential burden of proof ^[28]

2.56 In Scrutiny Digest 3 of 2019 the committee requested 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.^[29]

Attorney-General's response^[30]

2.57 The Attorney-General advised:

The Committee has requested that I provide detailed justification as to the appropriateness of the exemptions for journalists and whistleblowers being offence-specific defences in the Bill, and asks whether it would be appropriate for these defences to be redrafted as elements of the offences. The Committee has noted the two step test in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers for establishing whether it is appropriate that a circumstance be established as an offence-specific defence rather than an element of the offence, specifically that:

• it is peculiarly with 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.

Each of the proposed provisions (subsections 474.46(2) and (3) and subsections 474.47(2) and (3)) meet this threshold, for the reasons outlined in further detail below.
While any defendant would bear the evidential burden in relation to these exemptions, the legal burden of proof would remain with the prosecution. A defendant would merely need to raise evidence that suggests a reasonable possibility that the exemption would apply to their circumstances, before the prosecution would need to disprove the same beyond reasonable doubt.
I note that the defences will only be engaged in rare cases where there is a question as to whether the defendant is a bona fide journalist or whistleblower. In practice, the Prosecution Policy of the Commonwealth would likely exclude bona fide journalists and whistleblowers before proceedings were even commenced where this defence would clearly be available.
I also note that in some circumstances the evidential burden may be discharged through evidence adduced by the prosecution or the court, as provided by subsection 13.3(4) of the Criminal Code. In such cases, the defendant would not need to adduce additional evidence that the exemption would apply to their circumstances, and the application of the exemption would be a matter solely for the prosecution to disprove beyond reasonable doubt.
Subsections 474.46(2) and 474.47(2)–Journalism
Subsections 474.46(2) and 474.47(2) provide exemptions to their associated offences (which are found in subsections 474.46(1) and 474.47(1) respectively) where the material relates to a news report, or a current affairs report, that is in the public interest and is made by a person working in a professional capacity as a journalist.
These offences will not capture the legitimate activities of a journalist or media organisation. It would be difficult to conceive of circumstances where a legitimate news article or similar report would evince an actual intention that readers, viewers, or listeners trespass, cause damage or steal on agricultural land. Intention is an inherently high threshold and would require significantly more than an inadvertent, accidental or even negligent suggestion in a news report.
However, as highlighted in the explanatory memorandum to the Bill, this exemption puts beyond doubt that bona fide journalism is not captured by the offences. It is intended that persons involved at any stage of bona fide journalism, from research to publication, are not captured by the offence.
The inclusion of exemptions is also appropriate to ensure that the offences do not criminalise public interest journalism, given that the general defences in the Criminal Code may not apply to all circumstances.

Matters are peculiarly with the knowledge of the defendant
The defendant would be best placed to raise evidence that they are working in a professional capacity as a journalist and that the conduct in question relates to this employment. For example, details of an individual's employment situation and the work they undertake in this capacity would be peculiarly within their knowledge, as would their reasons as to publication (including planned publication) and therefore why the material is in the public interest.
Matters would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish
As already noted, it would be difficult to envisage the legitimate activities of journalists being capable of falling within the terms of the primary offence. This said, were the exemption achieved through an element in the primary offence, essentially requiring the prosecution to disprove the matter in every case, this would add unnecessary complexity to all prosecutions.
I acknowledge there may be circumstances where it would be just as easy for the prosecution to disprove as it is for the defendant to establish that the material related to bona fide journalism. This may be the case where material involves a well-known journalist or is published in a well-known journalistic publication. However, in such cases it would be usual practice for the prosecution to take this information into account before deciding to proceed with any prosecution in the first place, consistent with the Commonwealth's prosecution policy.
However, there are a range of circumstances where it will be substantially more difficult for the prosecution to disprove the existence of the exemption were they to bear the burden.
For example, where a freelance journalist is working for multiple companies on a commission basis, it could be more difficult for the prosecution to establish whether any particular conduct is a result of the person acting in their role as a journalist, or in a personal capacity. Comparatively, for a defendant to establish that the material related to bona fide journalism, they could simply have their employer or publisher provide evidence confirming their role, the professional nature of the conduct or to otherwise demonstrate the links to a particular publication.
Similarly, where a journalist is self-publishing, it would be far easier for the journalist to point to evidence of bona fide journalism, than it would be for the prosecution to disprove that the person was acting as a journalist.
In most–if not all–cases of bona fide journalism, relevant evidence to establish the exemption will likely be in the possession of the defendant, whereas only in some cases will the prosecution be in possession of similar evidence.
For these reasons, it is appropriate that the defendant bear an evidential burden in relation to this defence.
Subsections 474.46(3) and 474.47(3)–Whistleblowers
Subsections 474.46(3) and 474.47(3) provide exemptions to their associated offences (which are found in subsections 474.46(1) and 474.47(1) respectively) where, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for that conduct. As discussed in the explanatory memorandum to the Bill, this is primarily intended to ensure that a person making a disclosure under a statutory whistleblower or lawful disclosure scheme is not subject to the offence.
As with journalists, these offences will not capture the legitimate activities of whistleblowers. In particular, it would be difficult to conceive of circumstances where a person is making a lawful disclosure with the actual intention to incite trespass, cause damage or steal on agricultural land. As noted above, where the legitimate activities of whistleblowers are in question, it would be usual practice for the prosecution to take this information into account before deciding to proceed with any prosecution in the first place, consistent with the Commonwealth's prosecution policy.
While the defence of lawful authority (section 10.5 of the Criminal Code) may already apply to any whistleblowers in relation to disclosures permitted under Commonwealth law, it does not provide protection for people whose disclosures might be permitted or justified under relevant State or Territory laws. There are no general defences in the Criminal Code that would provide protection where State or Territory laws might exclude criminal liability. As such it is necessary to include a broader exemption to ensure that the offence does not criminalise lawfully protected disclosures under state and territory whistleblowing laws.
The existing defence of lawful authority in section 10.5 of the Criminal Code places the evidential burden on the defendant. For consistency with this provision and the reasons discussed below, it is appropriate that the evidential burden be placed on the defendant in relation to this exemption as well.
Matters are peculiarly within the knowledge of the defendant
Whistleblowing regimes exist in Commonwealth, State and Territory jurisdictions. These regimes will often include protections for the discloser's identity, including from a court or tribunal. For example, section 20 of the Public Interest Disclosure Act 2013 makes it an offence for a person to disclose identifying information about a second person who made a Public Interest Disclosure. Furthermore, section 21 of that Act provides that a person is not to be required to disclose (or produce) to a court or tribunal identifying information (or a document containing such information). As such, knowledge of whether a person has taken the necessary steps for their disclosure to be covered by a whistleblowing regime are peculiarly within the knowledge of the defendant.
Matters would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish
Similarly, the secrecy provisions of the various whistleblowing regimes would make it very difficult and costly for the prosecution to establish whether or not a defendant had complied with the requirements of the regime. This is particularly true in cases where multiple regimes may be applicable. In most cases the relevant documentation about the applicable regimes and the necessary steps to disclose appropriately would be in the possession of the whistleblower. Therefore it would be easier for the defendant to lead evidence of a reasonable possibility that they had engaged with the requirements of the whistleblowing regime.

Committee comment

2.58 The committee thanks the Attorney-General for this response. In relation to the exemption for journalism, the committee notes the Attorney-General's advice that the defendant would be best placed to raise evidence that they are working in a professional capacity as a journalist and that the conduct in question relates to this employment. The committee also notes the Attorney-General's advice that in most—if not all—cases of bona fide journalism, relevant evidence to establish the exemption will likely be in the possession of the defendant, whereas only in some cases will the prosecution be in possession of similar evidence. While the committee accepts that it may be easiest for the defendant to lead evidence in relation to their professional capacity, it remains unclear that this information would be peculiarly within the knowledge of the defendant.

2.59 In addition, the committee notes that the bill contains no definition as to when a news or current affairs report will be in the public interest. While the Attorney-General's response suggests that an individual's reasons for publication would be peculiarly within their knowledge, the committee considers that the undefined nature of what would constitute a news or current affairs report made 'in the public interest' would potentially make it difficult for a person to raise evidence to suggest the exemption applies.

2.60 In relation to the exemption for whistleblowers, the committee notes the Attorney-General's advice that the exceptions in subsections 474.46(3) and 474.47(3) are primarily intended to ensure that a person making a disclosure under a statutory whistleblower or lawful disclosure scheme is not subject to the offence. The committee also notes the Attorney-General's advice that provisions preventing the disclosure of a whistleblower's identity mean that knowledge of whether a person has taken the necessary steps for their disclosure to be covered by a whistleblowing regime are peculiarly within the knowledge of the defendant. The committee further notes the advice that the secrecy provisions of the various whistleblowing regimes would make it very difficult and costly for the prosecution to establish whether or not a defendant had complied with the requirements of the regime.

2.61 The committee also notes the Attorney-General's advice that in practice, the Prosecution Policy of the Commonwealth would likely exclude bona fide journalists and whistleblowers before proceedings were even commenced where this defence would clearly be available. The committee does not consider non-legislative policy guidance to be a sufficient justification for the use of offence-specific defences, noting that there is no parliamentary oversight of changes to policy documents.

2.62 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.63 The committee considers that it may be appropriate for the bill to be amended to incorporate the matters outlined in subsections 474.46(2) and 474.47(2) as elements of the relevant offences. The committee otherwise 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 the matters set out in those subsections, which do not appear to be peculiarly within the knowledge of the defendant.

2.64 In respect of subsections 474.46(3) and 474.47(3), in light of the information provided, the committee makes no further comment.

---

[28] 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).

[29] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 17-19.

[30] The minister responded to the committee's comments in a letter dated 8 August 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest