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Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2018 [2019] AUSStaCSBSD 8 (13 February 2019)

Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2018

Reversal of evidential and legal burden of proof^[36]

1.71 Schedule 2 of the bill seeks to amend the Competition and Consumer Act 2010 to provide the Australian Energy Regulator with new compulsory information gathering powers. Proposed  subsection 44AAFB(1)  makes it an offence for a person to fail to comply with a notice to produce documents or information given under proposed section 44AAFA. The offence carries a maximum penalty of imprisonment for two years or 100 penalty units. Proposed  subsection 44AAFB(2)  provides an exception (offence-specific defence) to this offence, stating that the offence does not apply if a person is not capable of complying with the notice. As such, this reverses the evidential burden of proof.^[37]

1.72 Proposed  subsection 44AAFB(3)  provides a further exception if the person can prove that, after a reasonable search, they are not aware of the documents specified in the notice and the person provides a written response to the notice, including a description of the scope and limitations of the search. As such this imposes a legal burden of proof on the defendant to prove that after a reasonable search, they are not aware of the documents.^[38]

1.73 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, interferes with this common law right.

1.74 As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time either the evidential or legal burden is reversed, with the rights of people affected being the paramount consideration. The explanatory memorandum does not address why either the evidential or legal burden has been reversed.

1.75 As the explanatory materials do not address this issue, the committee requests the Treasurer's advice as to why it is proposed to use offence-specific defences (which reverse both the evidential and legal burden of proof). 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.^[39]

[36] Schedule 2, item 5, proposed  section 44AAFB.  The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[37] Subsection 13.3(3) of the Criminal Code Act 1995 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.

[38] Section 13.4 of the Criminal Code Act 1995 provides that a burden of proof is a legal burden if the law expressly specifies it is, or requires the defendant to prove the matter or creates a presumption that the matter exists unless the contrary is proved.

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