Electoral Legislation Amendment (Voter Identification) Bill 2022 [2022] AUSStaCSBSD 46 (30 March 2022)

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Purpose	This bill seeks to prohibit large foreign social media services from de-platforming or censoring content by members of Parliament, election candidates, registered political parties, journalists and media organisations on their platforms within Australia. The bill also seeks to prohibit large foreign social media services from censoring philosophical (including political) discourse on their platforms within Australia.
Sponsor	Mr George Christensen MP
Introduced	House of Representatives on 14 February 2022

Reversal of the evidential burden of proof^[1]

1.13 Subclauses 31(1) and (2) seek to provide that a person commits either a criminal offence or is subject to a civil penalty if the person refuses or fails to take an oath, to make an affirmation, to answer a question, or to produce a document during an investigation by the ACMA. Subclause 31(3) provides an exception (offence-specific defence), stating that subclauses 31(1) and (2) do not apply if the person has a reasonable excuse.

1.14 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[2] 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.

1.15 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. Additionally, the committee notes that the Guide to Framing Commonwealth Offences states that:

1.16 The reversal of the evidential burden of proof in subclause 31(3) has not been addressed in the explanatory materials.

1.17 The committee draws its scrutiny concerns 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 the reasonable excuse defence in subclause 31(3) of the bill.

Immunity from civil liability^[4]

1.18 Subclause 33(1) of the bill seeks to provide that a person is protected from civil liability for loss, damage or injury of any kind suffered by another person because of the making, in good faith, of a complaint under clause 11 of the bill or because of the making of a statement, or the giving of a document or information to the ACMA in connection with an investigation under clause 12 of the bill. Subclause 33(2) seeks to provide immunity from civil liability to a person in relation to acts done in compliance with an anti-censorship notice or a notice given under subclause 21(2).

1.19 Clause 34 of the bill provides that the ACMA, or a delegate of the ACMA, are protected from liability for damages for acts or matters done or omitted to be done, in good faith in the performance or purported performance of any functions or exercise of any power conferred on the ACMA by or under the bill.

1.20 As a result, clauses 33 and 34 would remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.21 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum to the bill provides no explanation for these provisions, merely restating the terms of the provisions.

1.22 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of conferring immunity from liability in certain circumstances under clauses 33 and 34 of the bill.

[1] Subclause 31(3). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[2] 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.

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

[4] Clauses 33 and 34. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

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