National Security Legislation Amendment (Comprehensive Review and Other Measures No 3) Bill 2023 - Initial Scrutiny [2024] AUSStaCSBSD 5 (18 January 2024)

• National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 202348
• Reversal of the evidential burden of proof49

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National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023^[48]

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 (IS Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Archives Act 1983 (Archives Act) 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^[49]

1.64 Item 39 of Schedule 2 to the bill seeks to amend existing section 92 of the Australian Security Intelligence Organisation Act 1979 (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 reasonably be inferred from the information.^[50]

1.65 Proposed subsections 92(2) and 92(3) introduce defences to the offence that would be created by proposed subsection 92(1). Proposed subsection 92(2) provides the offence does not apply if the Minister or the Director-General has consented, in writing, to the information being made public.^[51]

1.66 A note to each of these defences clarifies that the evidential burden of proof is reversed.

1.67 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. 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, interfere with this common law right.

1.68 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 Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences), which states that a matter should only be included in an offence-specific defence (rather than 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.^[52]

1.69 In relation to proposed subsection 92(2), the explanatory memorandum states:

Subsection 92(2) would provide an exception to the offence in subsection 92(1) where the ASIO Minister or Director-General of Security has consented in writing to the information being made public. This would be consistent with the existing subsection 92(1).

Subsection 92(2) would also include a note that a defendant bears an evidential burden in relation to the matters in the subsection, by reason of subsection 13.3(3) of the Criminal Code. This is appropriate because consent being given would be exceptional. The decision to give consent needs to be made with very careful consideration of the impact of the publication of the identity of current or former ASIO employees and affiliates on their colleagues in ASIO, and other agencies, and the impact on other people in the community or internationally they have engaged with while working for ASIO. It also has to give regard to the sensitive matters they have been involved in that relate to Australia’s national security. It is reasonable to expect that any consent is clearly given and therefore can be demonstrated by the defendant. Clarity that the consent has been granted is a necessary consideration in ensuring the offence is operating effectively to protect the interests of the Commonwealth, of ASIO, and of the current or former ASIO employees or affiliates.^[53]

1.70 The committee notes that while written consent provided by the Minister or the Director-General, to making identifying information public, may only be made in exceptional circumstances, it is not clear to the committee why the evidential burden has been reversed in relation to this exception. It is not apparent to the committee that the Minister or the Director-General’s written consent would be a matter peculiarly within the defendant’s knowledge as the Minister or the Director-General would also have knowledge of such consent and would also be able to provide it as evidence if required. Further, it is not clear to the committee that obtaining or disproving such information would be significantly more costly or difficult for the prosecution.

1.71 The committee also notes that under existing subsection 92(1) of the ASIO Act, disproving the existence of written consent of the Minister or Director-General is an element of the offence of making information public that can identify an ASIO employee, former ASIO employee or ASIO affiliate.^[54] It is unclear to the committee why, in modernising the wording of the offence, it was necessary to create an additional defence, when previously it was sufficient for the matter to exist as an element of the offence.

1.72 As the explanatory materials do not adequately address this issue, the committee requests the minister's explanation as to:

• why it is proposed to use an offence-specific defence in proposed subsection 92(2) (which reverses the evidential burden of proof) in relation to the offence under proposed subsection 92(1);

• why the matters in proposed subsection 92(2) cannot remain as an element of the offence under proposed subsection 92(1); and

• whether further guidance can be provided as to the operation of the defence.

1.73 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.

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^[48] 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 1 of 2024; [2024] AUSStaCSBSD 5.

^[49] 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).

^[50] Proposed subsection 92(1).

^[51] Proposed subsection 92(2).

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

^[53] Explanatory memorandum, p. 47.

^[54] Australian Security and Intelligence Act 1979, subsection 92(1).