National Security Legislation Amendment (Comprehensive Review and Other Measures No 3) Bill 2023 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 45 (28 February 2024)

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Purpose	The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023 (the bill) seeks to amend the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Intelligence Services Act 2001, the Telecommunications (Interception and Access) Act 1979 and the Archives Act 1983 to support intelligence agencies.
Portfolio	Home Affairs
Introduced	House of Representatives on 30 November 2023
Bill status	Before the House of Representatives

Reversal of the evidential burden of proof^[197]

2.76 Item 39 of Schedule 2 to the bill seeks to amend existing section 92 of the ASIO Act by repealing and substituting it with an amended offence provision. The offence relates to making information public or causing or permitting information to be made public if the information identifies a person as being an Australian Security and Intelligence Organisation (ASIO) employee, a former ASIO employee or an ASIO affiliate, or could reasonably lead to establishing the identity of a person as such, or the identity of a person as being as such could reasonable be inferred from the information.^[198]

2.77 Proposed subsection 92(2) introduces a defence to this offence. Proposed subsection 92(2) provides that the offence does not apply if the Minister or the Director‑General has consented, in writing, to the information being made public.^[199] A note to the defences clarifies that the evidential burden of proof is reversed.

2.78 In Scrutiny Digest 1 of 2024, the committee requested the minister’s advice as to:

Minister for Home Affairs response^[201]

2.79 The Minister for Home Affairs (the minister) advised that if an individual has received written consent the written approval should be in their knowledge and possession and they should be able to produce such evidence without incurring significant cost or delay.

2.80 The minister further advised that if the prosecution bore the burden of proof, the prosecution would be required to prove the individual’s recklessness as to the absence of written consent from the Minister or Director‑General, which would be very challenging.

2.81 The minister further advised that, in the context of the offence under proposed section 92, the Director-General had noted that those who identify themselves as security clearance holders or intelligence community workers were ‘high value targets’ to malicious actors. Accordingly, there is potential for ASIO’s operations to be exposed and for Australia’s security to be undermined as a result of the publication of identities of current or former ASIO employees. The minister advised that the reversal of the burden of proof is justified on the basis of the conduct proscribed in the offence posing a grave danger to public health or safety, in accordance with paragraph 4.3.1 of the Attorney‑General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences).^[202]

2.82 Finally the minister advised that approval to publish an ASIO officer’s identity is a rare occurrence and consent to do so is only given in exceptional circumstances. If a defendant had obtained such written consent, it would be readily apparently and accordingly, could be easily produced.

Committee comment

2.84 In relation to the first element referred to in the Guide to Framing Commonwealth Offences (whether the matter contained within the defence is peculiarly within the defendant’s knowledge), the committee notes that, as acknowledged by the minister, written consent to publish an ASIO officer’s identity is provided by the minister or the Director‑General. As such, it is unclear to the committee how written consent is, or may be, peculiarly within the defendant’s knowledge, as a record of the written authorisation would just as readily be available to the minister or the Director-General.

2.85 Further, in relation to the second element (whether it would be significantly more difficult and costly for the prosecution to disprove the matter), it is not clear to the committee that it would be significantly more costly or difficult to disprove the existence of a written authorisation given, as acknowledged by the minister, such authorisation is provided very rarely.

2.86 The committee acknowledges the additional justification provided in the minister’s response as to the appropriateness of reversing the evidential burden of proof in this case, due to the danger to public health or safety at large that could arise as a result of the publication of an ASIO officer’s identity.

2.87 The committee queries whether there is a demonstrable need to separate proposed subsection 92(2) as a defence to the offence under proposed subsection 92(1), noting that the existing section 92 creates substantially the same offence but requires the prosecution to disprove the existence of written authorisation to publish the identification of an ASIO officer as an element of the offence. The committee notes that there is no suggestion in the explanatory memorandum or in the minister’s response that there has been any difficulty prosecuting people for offences against the existing provision. As such, it remains unclear to the committee why the relevant matter could not remain part of the proposed new offence rather than included separately as an offence-specific defence.

2.88 As a final point, the committee reiterates that an important aspect of the presumption of innocence is the duty imposed on the prosecution to prove every element of an offence. In this regard, the Guide to Framing Commonwealth Offences provides useful guidance as to when it may be appropriate for a matter to be included in an offence‑specific defence. Adherence to these principles, unless there is a demonstrable need to depart from them, assists to keep to a minimum the number of provisions that impose a burden of proof on a defendant.

In light of the above, the committee draws this matter 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 offence under proposed subsection 92(1).

^[196] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, Scrutiny Digest 3 of 2024; [2024] AUSStaCSBSD 45.

^[197] Schedule 2, item 39, proposed subsection 92(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[200] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2024 (18 January 2024) pp. 18–20.

^[201] The minister responded to the committee’s comments in a letter, dated 6 February 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 3 of 2024).

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