Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021 [2021] AUSStaCSBSD 108 (16 June 2021)

• Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021
• Reverse evidential burden of proof64

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Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021

Purpose	This bill, along with the Financial Regulator Assessment Authority Bill 2021, seeks to establish the Financial Regulator Assessment Authority to assess the effectiveness and capability of each of the Australian Prudential Regulation Authority and Australian Securities and Investments Commission
Portfolio	Treasury
Introduced	House of Representatives on 13 May 2021

Reverse evidential burden of proof^[64]

1.79 Subsection 56(2) of the Australian Prudential Regulation Authority Act 1998 (APRA Act) provides that it is an offence if a person discloses protected information or produces a protected document and the disclosure or production is not authorised by the APRA Act. The offence carries a maximum penalty of imprisonment for up to 2 years.

1.80 Item 3 of Schedule 1 to the bill seeks to insert proposed subsections 56(6AA) and 56(6AB) into the APRA Act to provide two offence-specific defences to the offence in existing subsection 56(2). Proposed subsection 56(6AA) provides that it is a defence if the disclosure or production was to a Financial Regulator Assessment Authority (Authority) official for the purpose of the performance of functions or the exercise of powers of the Authority. Proposed subsection 56(6AB) provides that it is a defence if the disclosure or production was by a person who is, or has been, an Authority official and the information or document was acquired in the course of their duties with the Authority. A defendant bears an evidential burden in relation to these defences.

1.81 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. Subsection 13.3(3) of the Criminal Code 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. 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.

1.82 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 reversals of the evidential burden of proof in proposed subsections 56(6AA) and 56(6AB) have not been addressed in the explanatory materials.

1.83 The committee notes that the Guide to Framing Commonwealth Offences^[65] 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.^[66]

1.84 On the information provided, noting no explanation has been included in the explanatory memorandum, it is unclear to the committee that the defences in proposed subsections 56(6AA) and 56(6AB) are matters that would be peculiarly within the knowledge of the defendant. For example, in relation to proposed subsection 56(6AA) it appears to the committee that the relevant Authority official would be aware of the disclosure or production.

1.85 The committee requests the Treasurer's more detailed justification as to the appropriateness of including the specified matters as offence-specific defences. 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.

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[64] Schedule 1, Item 3, proposed subsections 56(6AA) and 56(6AB). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

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

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