Export Control Amendment (Streamlining Administrative Processes) Bill 2022 [2023] AUSStaCSBSD 3 (8 February 2023)

• Export Control Amendment (Streamlining Administrative Processes) Bill 2022
• Privacy
• Significant matters in delegated legislation8
• Reversal of the evidential burden of proof23

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Export Control Amendment (Streamlining Administrative Processes) Bill 2022

Purpose	This bill seeks to amend the Export Control Act 2020 to ensure an appropriately flexible and fit-for-purpose information-sharing framework, and to improve administrative processes and clarify the intent of a provision of the Act.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 30 November 2022

Privacy
Significant matters in delegated legislation^[8]

1.21 Schedule 1 to the bill seeks to set out new information disclosure requirements for the Export Control Framework. The explanatory memorandum states that the intention of Schedule 1 is to provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards.^[9] Item 12 of Schedule 1 introduces several new provisions to this effect.

1.22 Proposed subsection 388(1) provides that an entrusted person, or a person covered by proposed subsection 388(2), may use or disclose relevant information for the purposes of performing functions or duties or assisting persons. 'Entrusted person' is defined under a proposed amendment to section 12 to include the Minister, the Secretary, an APS employee in the department, any other person employed by the Commonwealth in connection with the department, and any other person who is employed or engaged by the Commonwealth or a body corporate and is prescribed by the rules. Proposed subsection 388(2) provides that the following persons may also use or disclose relevant information under subsection 388(1): any person employed by the Commonwealth or a Commonwealth corporation, authorised officers, approved auditors, approved assessors, accredited veterinarians, nominated export permit issuers and issuing officers. Many of the classes of persons listed under proposed subsection 388(2) could potentially include non-commonwealth employees. For example, under subsection 291(3) of the Export Control Act 2020 (the Export Act) an authorised officer includes a 'third-party authorised officer'. Third-party authorised officers are not required to be Commonwealth, state or territory employees. Similarly, nominated export permit issuers are persons nominated within an approved arrangement, with no requirement that these persons are Commonwealth employees.^[10]

1.23 'Relevant information' means information obtained or generated in the course of performing functions or duties or exercising powers or assisting persons.^[11] The bill would allow for the use or disclosure of relevant information in a wide variety of circumstances, including:

• to foreign governments,^[12] for the purposes of export, managing Australia’s international relations in respect of trade, or giving effect to Australia’s international obligations;

• to Commonwealth entities,^[13] for the purposes of assisting the entity to perform its functions or duties or exercise its powers;

• to a court or tribunal exercising federal jurisdiction,^[14] for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision;

• to law enforcement agencies,^[15] where the entrusted person reasonably believes that disclosure is necessary for the enforcement of certain laws;

• to state or territory bodies,^[16] if the Secretary reasonably believes that disclosing the information is necessary for the purposes of administering state or territory law;

• to undertake research, policy development or data analysis,^[17] for the purposes of administering the department or achieving one of the objectives of the Export Act;

• to manage severe or immediate threats,^[18] if the Secretary reasonably believes using or disclosing the information is necessary to manage the threat and the threat is export related and of a nationally significant scale; and

• when authorised by the rules.^[19]

1.24 Under proposed section 397G, the use or disclosure of protected information^[20] would constitute an offence, providing some safeguards against the inappropriate disclosure of private information. Proposed section 397F sets out what kinds of information may constitute protected information, including the fact that the rules may set out exceptions to the definition of protected information.

1.25 The committee's consistent scrutiny view is that significant matters should be included in the primary legislation unless a sound justification is provided for the use of delegated legislation. The prescription of the circumstances in which the use and disclosure of information is authorised is one such matter. This is particularly so when the use or disclosure of the information has the potential to impact on a person's right to privacy, as in this case. The committee is therefore concerned about the proposed amendment to section 12 which allows for rules to additionally define who is an 'entrusted person' and the rule-making powers set out at proposed sections 397E and 397F. In this instance, the statement of compatibility states in relation to proposed section 397E:

The authorisation in new section 397E would allow the rules to prescribe the use or disclosure of relevant information in other circumstances. This is necessary as circumstances may arise in the future, which may require expedient authorisation to effectively manage the export control framework, and where reliance on another authorisation is not available or appropriate. It is also needed because there are classes of person who only have functions and powers under the various export control rules that are made under the Act. The rules under new section 397E would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for the use or disclosure. In addition, the rules would be able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure appropriate protections are in place for any personal information.^[21]

1.26 In relation to the rule-making power at proposed section 397F, the explanatory memorandum states:

It is necessary to allow the rules to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and, potentially Australia’s international obligations, in the future. However, any additional kinds of protected information to be prescribed by the rules would need to meet the requirements set out in new subsection 397F(2) of the Act.^[22]

1.27 While acknowledging these explanations, and welcoming the safeguards set out in proposed subsection 397F(2), the committee remains concerned about the new rule-making powers introduced by the bill given the breadth of the class of persons who may exercise the new information disclosure powers. This is particularly so given that non-Commonwealth officers may exercise information disclosure powers. The committee acknowledges the need for flexibility in relation to the prospect of rapidly changing technology. However, the committee considers that the justification provided in the explanatory memorandum that new delegated legislation making powers are necessary due to a general uncertainty in relation to future regulatory needs is overbroad in the context of the Export Act. The committee is also concerned at the lack of enforceable consultation requirements given that these rule-making powers have the potential to impact on a person's right to privacy.

1.28 In light of the above, the committee requests the minister's more detailed advice in relation to why it is both necessary and appropriate to include new rule-making powers in proposed section 397E, proposed paragraph 397F(1)(e), and in the definition of 'entrusted person' in the proposed amendment to section 12. The committee's consideration of this issue will be assisted if the minister provides examples demonstrating why new rule-making powers are necessary.

1.29 The committee also requests the minister's advice in relation to the appropriateness of amending the bill to provide enforceable consultation requirements in relation to these rule-making powers.

Reversal of the evidential burden of proof^[23]

1.30 As noted above, item 12 of Schedule 1 to the bill seeks to insert proposed section 397G into the Export Act to provide that it is an offence to use or disclose protected information.

1.31 Proposed subsection 397G(3) provides that this offence does not apply if the use or disclosure of the information is required, or authorised by the Export Act or a law of the Commonwealth, or a state or territory law that is prescribed by the rules. Similarly, proposed subsection 397G(4) provides that the offence does not apply if the use or disclosure occurred in good faith and was undertaken in the performance of functions and duties or assisting another person in the performance of their functions or duties.

1.32 A defendant would bear the evidential burden of proof in relation to both of these defences.

1.33 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[24] 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.

1.34 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences,^[25] which states 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.^[26]

1.35 In this instance the explanatory memorandum states:

The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the defendant. Further, there would be a number of authorised uses and disclosures set out in new Division 2 of Part 3 of Chapter 11 of the Act (as inserted by this item), across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively protect information under new section 397G, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation.^[27]

1.36 The explanatory statement provides a similar justification in relation to the defence set out at proposed subsection 397G(4).

1.37 It is not clear to the committee from the explanations provided in the explanatory memorandum how the relevant matters can be said to be peculiarly within the defendant's knowledge when several of the matters appear to be questions of law. For example, whether disclosure is in accordance with the Export Act appears to be a matter which the prosecution could readily ascertain.

1.38 The committee considers it is not appropriate to reverse the evidential burden of proof in relation to matters that are not peculiarly within the knowledge of the defendant. The committee therefore 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.^[28]

1.39 The committee suggests that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. The committee also requests the minister's advice in relation to this matter.

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[8] Schedule 1, item 12. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (iv).

[9] Explanatory memorandum, p. 5.

[10] See definition of 'nominated export permit issuer' at section 12 of the Export Control Act 2020.

[11] See definition of 'relevant information' at proposed section 12 of the bill.

[12] Schedule 1, item 12, proposed section 389.

[13] Schedule 1, item 12, proposed section 391.

[14] Schedule 1, item 12, proposed section 392.

[15] Schedule 1, item 12, proposed section 393.

[16] Schedule 1, item 12, proposed section 397C.

[17] Schedule 1, item 12, proposed section 394.

[18] Schedule 1, item 12, proposed section 397D.

[19] Schedule 1, item 12, proposed section 397E.

[20] See Schedule 1, item 12, proposed section 397F for the kinds of information that constitute protected information.

[21] Statement of compatibility, p. 62.

[22] Explanatory memorandum, pp. 20-21.

[23] Schedule 1, item 12, proposed subsections 397G(1) and (3). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[24] 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.

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

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

[27] Explanatory memorandum, p. 22.

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