Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 153 (13 July 2021)

• Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021
• Reverse evidential burden of proof20

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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
Bill status	Received the Royal Assent on 29 June 2021

Reverse evidential burden of proof^[20]

2.40 In Scrutiny Digest 8 of 2021 the committee requested the Treasurer's more detailed justification as to the appropriateness of including the specified matters as offence-specific defences. The committee noted that its consideration of the appropriateness of a provision which reverses the burden of proof would be assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[21]

Treasurer's response^[22]

2.41 The Treasurer advised:

Section 56 of the Australian Prudential Regulation Authority Act 1998 prohibits the disclosure of information by individuals in certain circumstances. Section 56 includes a range of defences that apply in relation to the prohibition. Item 3 of Schedule 1 to the Financial Regulator Assessment Authority (Consequential Amendments and Transitional Provisions) Bill 2021 adds additional defences that apply to APRA officials who make disclosures to the Authority (proposed section 56(6AA), and officials of the Authority (proposed section 56(6AB)).
A defendant bears an evidential burden in relation to these defences. This is appropriate as it will be peculiarly within the knowledge of the defendant how and whether the conduct was disclosed to the Authority for the performance of its functions or powers (proposed section 56(6AA)) or the circumstances of the disclosure where the person was an official of the Authority and acquired the information in the course of their duties in relation to the Authority (proposed section 56(6AB)).

Committee comment

2.42 The committee thanks the Treasurer for this response. The committee notes the Treasurer's advice that it will be peculiarly within the knowledge of the defendant how and whether the information was disclosed to the Financial Regulator Assessment Authority (the Authority) for the performance of its functions or powers. Similarly, the Treasurer advised that the circumstances of the disclosure where the relevant person was an official of the Authority will be peculiarly within the defendant's knowledge.

2.43 While noting this advice, it is not clear from this justification why the relevant knowledge will be peculiarly within the knowledge of the defendant in respect of either subsection 56(6AA) or 56(6AB). For example, in relation to subsection 56(6AA) it is not clear why the official to whom information is disclosed would not have knowledge of the circumstances of the disclosure. Further, the committee notes that for the purposes of subsection 56(6AA) it is not directly relevant "how" the disclosure occurred. Rather, the relevant factor is whether the disclosure was for the performance of the Authority's functions or powers. Similarly, the relevant consideration in relation to subsection 56(6AB) is whether the disclosure occurred during the course of the official's duties.

2.44 The committee also notes that the Treasurer's advice did not address whether it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the relevant matter. As noted in the committee's previous comments in Scrutiny Digest 8 of 2021, the Guide to Framing Commonwealth Offences^[23] 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.^[24]

2.45 As such, from a scrutiny perspective, the committee does not consider that the Treasurer has adequately addressed the committee's scrutiny concerns in relation to the reversal of the evidential burden of proof in item 3 of Schedule 1 to the bill.

2.46 The committee continues to have scrutiny concerns regarding provisions of the bill that allow for the reversal of the evidential burden of proof. However, in light of the fact that the bill has already passed both Houses of the Parliament, the committee makes no further comment on these matters.

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[20] 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).

[21] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2021, pp. 23–24.

[22] The Treasurer responded to the committee's comments in a letter dated 23 June 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

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

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