Identity Verification Services Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 213 (8 November 2023)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	The bill seeks to establish a legislative framework to support the operation of technical systems that will facilitate identity-matching services.
Portfolio	Attorney-General
Introduced	House of Representatives on 13 September 2023
Bill status	Before the Senate

Reversal of evidential burden of proof^[98]

2.43 The bill seeks to facilitate the exchange of identification information between the Commonwealth and state and territory governments, and certain other public and private sector entities.

2.44 Subclause 30(1) seeks to make it an offence for an entrusted person who has obtained protected information in their capacity as an entrusted person to make a record of the information or to disclose the information to another person. Subclause 30(2) seeks to make it an offence for an entrusted person to access protected information. Subclause 30(3) provides an exception (offence-specific defence) to these offences, stating that the offence does not apply if the conduct is authorised by, or is in compliance with, a requirement under a Commonwealth, state or territory law. Each offence carries a maximum penalty of two years imprisonment.

2.45 A note to subclause 30(3) clarifies that subsection 13.3(3) of the Criminal Code Act 1995 applies and 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.

2.46 In Scrutiny Digest 12 of 2023, the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) under subclause 30(3). The committee suggested that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence, and noted that its 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.^[99]

Acting Attorney-General's response^[100]

2.47 The Acting Attorney-General advised that the exceptions set out in the bill reflect that the criminal offences are only intended to apply where an entrusted person's conduct is not a proper or legitimate part of their work.

2.48 The Acting Attorney-General advised that it will be peculiarly within the defendant's knowledge as to the basis on which they believed they were authorised to access, make a record of, or disclose protected information in performing their duties.

2.49 The Acting Attorney-General also noted that the offences will only apply to entrusted persons which is a class of people limited to persons employed by, or contractors engaged to provide services to, the department. Entrusted officers will have received training and it is reasonable to expect that they will understand their obligations under the bill when dealing with protected information.

2.50 The Acting Attorney-General further advised that it will be significantly more difficult and costly for the prosecution to prove, beyond a reasonable doubt, that the entrusted person was not authorised to access, make a record of, or disclose protected information. This is because the prosecution would need to negative a significant number of facts, including that protected information was not disclosed for the purposes of the Act, in the course of performing the person's functions or duties, or that there was authority for their actions under a Commonwealth, state or territory law. The Acting Attorney-General advised that, on the other hand, if an entrusted person has a particular reason for thinking their conduct was authorised it would not be difficult for them to describe where they thought that authority arose.

Committee comment

2.52 The committee considers that while it may be that only the defendant will know the basis on which they believed they were authorised to access, make a record of, or disclose protected information in performing their duties, the proper test is whether the matter that establishes an exception to the offence is peculiarly within the knowledge of the defendant. In this case, an exception is made out in subclause 30(3) where the conduct is authorised by, or in compliance with, a law of the Commonwealth or a state or territory, and not whether the defendant believed their conduct was authorised by, or in compliance with, such a law. The committee remains of the view that this is not peculiarly within the knowledge of the defendant as this is something knowable by the prosecution.

2.53 The committee notes the Acting Attorney-General's advice in relation to the significant difficulty and cost of disproving various facts and the relative ease with which an entrusted person could adduce evidence as to what authority authorised their conduct.

2.54 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 matters that appear not to be peculiarly within the knowledge of the defendant.

^[97] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Identity Verification Services Bill 2023, Scrutiny Digest 13 of 2023; [2023] AUSStaCSBSD 213.

^[98] Subclause 30(3). The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[99] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (18 October 2023) pp. 28–32.

^[100] The minister responded to the committee's comments in a letter dated 6 November 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 13 of 2023 available at: http://www.aph.gov.au/senate_scrutiny_digest.

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