Taxation Administration Regulations 2017 [F2017L01227]-Response required [2017] AUSStaCSDLM 396 (15 November 2017)

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Instrument	Taxation Administration Regulations 2017 [F2017L01227]
Purpose	Sets out detailed rules and processes for the administration of taxation matters under the Taxation Administration Act 1953
Authorising legislation	Taxation Administration Act 1953
Portfolio	Treasury
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow currently must be given by 7 December 2017
Scrutiny principle	Standing Order 23(3)(b)

Personal rights and liberties: offences

Scrutiny principle 23(3)(b) of the committee's terms of reference requires the committee to ensure that instruments of delegated legislation do not trespass unduly on personal rights and liberties. This principle requires the committee to ensure that where instruments may reverse the onus of proof in the trial of an individual, this infringement on well-established and fundamental rights is justified.

Subsection 8C(1) of the Taxation Administration Act 1953 (the Act) establishes offences for failure to comply with various requirements under taxation law, including refusing or failing to give information or documents to the Commissioner or another person, lodge an instrument for tax assessment, or attend before the Commissioner or another person. These offences are absolute liability offences. Section 8D creates offences when attending before the Commissioner or another person pursuant to a taxation law: refusing or failing to answer a question or produce a document (8D(1), a strict liability offence), and refusing or failing to make an oath or affirmation (8D(2)).

Section 7 of the instrument provides that, in a prosecution of a person for any of the above offences, the Commissioner of Taxation, Second Commissioner or Deputy Commissioner may issue a certificate in writing certifying that the person refused or failed to do the matter or thing constituting the offence, and that such a certificate 'is prima facie evidence of the facts stated in the certificate'.

It is of concern to the committee that the issuance of such a certificate would appear to purport to establish, prima facie, the commission of the necessary element of the offence. In so doing, this seems to effectively put the onus on a defendant to contest the facts stated in the certificate, going to the question of whether they had as

a matter of fact committed the offence.

The explanatory statement does not explain the legal implication of the issuance of such a certificate, nor provide any justification for the apparent constraint on the right of persons prosecuted for one of the offences for which the certificate may be issued to be presumed innocent until proven guilty.

The committee requests the minister's advice as to the impact of any certificate provided under section 7 of the instrument on the operation of the offences

to which the section applies, and the justification for any resulting constraint on

a defendant's right to be presumed innocent until proven guilty.