Treasury Laws Amendment (COVID-19 Economic Response) Bill 2021 [2021] AUSStaCSBSD 134 (23 June 2021)

• Treasury Laws Amendment (COVID-19 Economic Response) Bill 2021
• Reverse evidential burden10

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Treasury Laws Amendment (COVID-19 Economic Response) Bill 2021

Purpose	Schedule 1 to the bill seeks to amend the income tax law to extend the concessional tax treatment of payments received by eligible businesses under eligible COVID-19 recovery grant programs administered by a State or Territory Government (or a State or Territory authority) Schedule 2 to the bill seeks to amend the tax secrecy provisions in the Taxation Administration Act 1953 to allow protected information to be disclosed to Services Australia for the purposes of administering the COVID-19 Disaster Payment
Portfolio	Treasury
Introduced	House of Representatives on 16 June 2021

Reverse evidential burden^[10]

1.16 Section 355-25 in Schedule 1 to the Taxation Administration Act 1953 currently provides that it is an offence for a taxation officer to disclose or record protected information. Section 355-65 provides that this offence does not apply if an item in the table at subsection 355-65(2) covers the disclosure. The defendant bears an evidential burden in relation to this defence. Item 1 of Schedule 2 to the bill inserts a new item into the table at subsection 355-65(2) to provide that it is not an offence for a taxation officer to disclose protected information to the Chief Executive Officer of Services Australia where the information is disclosed for the purposes of administering the COVID-19 Disaster Payment.

1.17 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, interfere with this common law right.

1.18 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:

It is appropriate that the evidential burden be reversed in this situation. Matters relating to the disclosure of protected information and for which purposes (such as what information is being disclosed and for what purpose the disclosure is being made) are peculiarly within the knowledge of the person making the disclosure and can be raised in making their defence. It would be significantly more difficult and costly for the prosecution to disprove these facts.^[11]

1.19 The committee notes that the Guide to Framing Commonwealth Offences^[12] 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.^[13]

1.20 In this case, it is not apparent that the disclosure of information is a matter peculiarly within the defendant's knowledge, or that it would be difficult or costly for the prosecution to establish the matters. In this instance, the Chief Executive Officer of Services Australia would be aware of the disclosure of information. As a result, this matter appears to be more appropriate to be included as an element of the offence.

1.21 The committee draws this matter 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 matters that do not appear to be peculiarly within the knowledge of the defendant.

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[10] Schedule 2, item 1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[11] Explanatory memorandum, p. 8.

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

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