Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 [2021] AUSStaCSBSD 21 (3 February 2021)

• Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020
• Reversal of evidential burden of proof16

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Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020

Purpose	This bill seeks to ensure that the Inspector-General of Intelligence and Security retains oversight of the Australian Federal Police's and the Australian Criminal Intelligence Commission's use of network activity warrants This bill also seeks to amend the Inspector-General of Intelligence and Security Act 1986 to ensure that the legislation governing the IGIS is adapted to contemporary circumstances, including technical amendments to improve clarity, modernise drafting expressions and removing redundant provisions, as well as amendments to address certain limitations in the Inspector-General of Intelligence and Security's oversight functions and powers in order to improve the flexibility and strengthen the integrity of inquiry processes
Portfolio	Attorney-General
Introduced	House of Representatives on 9 December 2020

Reversal of evidential burden of proof^[16]

1.33 Currently, section 41 of the Intelligence Services Act 2001 provides that it is an offence to identify a person as being or having been an agent or staff member of ASIS (who is not the Director‑General of ASIS or such other persons as the determined by the Director‑General), or to publish information from which such a person's identity could be inferred or could reasonably lead to the identity of such a person being established. Item 195 of Schedule 1 to the bill seeks to add proposed subsection 41(2) which would provide an exception (offence-specific defence) to this offence if the person identifies the person to an IGIS official, for the purpose of the IGIS official exercising a power or performing a function or duty as an IGIS official. The offence carries a maximum penalty of imprisonment for 10 years.

1.34 The committee also notes that the bill replaces or amends numerous other offence specific defences in the Intelligence Services Act 2001, Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Australian Human Rights Commission Act 1986, Australian Security Intelligence Organisation Act 1979 and Taxation Administration Act 1953.^[18]

1.35 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[19] 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.

1.36 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 in proposed subsection 41(2) has not been addressed in the explanatory materials.

1.37 As the explanatory materials do not address this issue, the committee requests the minister's advice as to why it is proposed to use offence-specific defences (which reverse 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.^[20]

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^[16]17 Schedule 1, item 195. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[18] See Schedule 1, items 150, 152, 165-167, 185-193, 203 and Schedule 2, items 28, 32 and 52.

[19] 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 burden in relation to that matter.

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