Treasury Laws Amendment (2020 Measures No 6) Bill 2020 [2020] AUSStaCSBSD 230 (9 December 2020)

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Purpose	Schedule 1 of this bill seeks to amend the temporary full expensing and backing business investment provisions in the income tax law to provide greater flexibility for entities to access concessions Schedule 2 seeks to amend the Competition and Consumer Act 2010 by reallocating the responsibility for conducting sectoral assessments and making consumer data rules Schedule 3 seeks to amend the Australian Charities and Not-for-profits Commission Act 2012 to incentivise basic religious charities that may be responsible for past institutional child sexual abuse to join the National Redress Scheme for Institutional Child Sexual Abuse Schedule 4 seeks to make a number of minor and technical amendments to various laws in the Treasury portfolio
Portfolio	Treasury
Introduced	House of Representatives on 2 December 2020

No-invalidity clause^[57]

1.1 Item 36 of Schedule 2 seeks to replace section 56BS of the Competition and Consumer Act 2010. Proposed subsection 56BS(1) provides that the minister may make consumer data rules under existing subsection 56BA(1) without complying with paragraphs 56BP(b) or (c), after consultation with the Commission and the Information Commissioner. The minister must believe (whether or not that belief is reasonable) that is it necessary to make consumer data rules to avoid a risk of serious harm to the efficiency, integrity or stability of any aspect of the Australian economy, or the interests of consumers. Failure to consult the Commission and Information Commissioner does not invalidate the consumer data rules,^[58] but rules made without this consultation cease to be in force six months after the day they are made.^[59]

1.2 The committee previously raised concerns about the inclusion of no‑invalidity clauses in relation to the consumer data rules in its comments on the Treasury Laws Amendment (Consumer Data Right) Bill 2019 in Scrutiny Digest 4 of 2019.^[60]

1.3 In addition, proposed section 56BTA provides that a failure to comply with proposed section 56BP, 56BQ or 56BR does not invalidate consumer data rules made under existing subsection 56BA(1). The committee considers that providing that the consumer data rules remain valid even if there is a failure to comply with the statutory requirements undermines including such obligations in the legislation.

1.4 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum.

1.5 In this regard, the explanatory memorandum does not justify the no‑invalidity clauses in proposed subsection 56BS(2) or proposed section 56BTA.

1.6 The committee therefore requests the Assistant Treasurer's advice as to the rationale for including no-invalidity clauses in proposed subsection 56BS(2) and proposed section 56BTA in relation to requirements for making consumer data rules.

Reverse evidential burden of proof^[61]

1.7 Item 143 of Schedule 4 seeks to insert proposed section 355-67 into the Taxation Administration Act 1953 (the Act) to provide that the offence in relation to the disclosure of protected information by taxation officers in section 355-25 of the Act does not apply in certain circumstances.

1.8 Specifically, proposed subsection 355-67(1) provides that section 355-25 does not apply if the entity is a taxation officer, the Commissioner and no other person or body is appointed as a registrar, and the record or disclosure is made for the performance of the registrar's functions or powers. The defendant bears the evidential burden of proof in relation to the matters in proposed subsection 355‑67(1).

1.9 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.^[62]

1.10 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:

1.11 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. The reversal of the evidential burden of proof has not been addressed in the explanatory materials.

1.12 As the explanatory materials do not address this issue, the committee requests the Assistant Treasurer's advice as to why it is proposed to use an offence-specific defence (which reverses 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.^[64]

[57] Schedule 2, item 36, proposed section 56BS and proposed section 56BTA. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii) and (iv).

[60] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2019, 31 July 2019, pp. 27- 29.

[61] Schedule 4, item, 143, proposed section 355-67. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[62] 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

[63] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement

[64] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests