Commonwealth of Australia Explanatory Memoranda

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PRIME MINISTER AND CABINET LEGISLATION AMENDMENT (2017 MEASURES NO. 1) BILL 2017

                               2016-2017




 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                   HOUSE OF REPRESENTATIVES




PRIME MINISTER AND CABINET LEGISLATION AMENDMENT
            (2017 MEASURES NO. 1) BILL 2017




                      ADDENDUM TO THE
                  EXPLANATORY MEMORANDUM




 (Circulated by authority of the Assistant Minister to the Prime Minister,
                    Senator the Hon James McGrath)
  PRIME MINISTER AND CABINET LEGISLATION AMENDMENT
              (2017 MEASURES NO. 1) BILL 2017

This addendum responds to a request made by the Senate Standing Committee
for the Scrutiny of Bills in Scrutiny Digest No. 6 of 2017 dated 14 June 2017.
The Committee requested that 'key' additional information provided to that
Committee by the Assistant Minister to the Prime Minister on item 11 of
Schedule 5 be included in the Explanatory Memorandum.

NOTES ON CLAUSES

Schedule 5 - Royal Commissions

Royal Commissions Act 1902

Item 11 - After subsection 3(6)

On page 17, paragraph 57, after the sentence: "By application of subsection
13.3(3) of the Criminal Code, the burden of proof on a defendant when raising
irrelevance as a defence to any prosecution for the offence is an evidential
burden only.", insert the following new paragraphs:

"In terms of the 'evidential burden', through subsection 13.3(6) of the Criminal
Code, a defendant relying on the proposed defences in the Bill needs to adduce
or point to evidence that suggests a reasonable possibility that the matter exists
or does not exist. Where that evidential burden is discharged by the defendant
the prosecution then has the legal burden of disproving that matter (i.e. beyond
reasonable doubt) (subsection 13.3(2) of the Criminal Code).

Where a person seeks to rely on the proposed defence of 'reasonable excuse' to
justify not giving information or a statement in writing as requested by a
Commissioner, the defendant needs to bring that excuse to the attention of the
prosecution (for example, that the information or statement has not been given
because the information is subject to legal professional privilege). The factual
circumstances to support the existence of the excuse (or the defence) will be
known to the defendant (e.g. that the information being requested is or might be
privileged). It is going to be significantly more difficult and costly for the
prosecution to adduce evidence that suggests the information or statement
requested is not privileged, than for the defendant to adduce evidence to support
the privilege claim.

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Similarly, if a defendant claims that the information required to be given to a
Commissioner is not relevant to the Commission's inquiries, the factual
circumstances to support the existence of that excuse (or the defence) is going
to be within the knowledge of the defendant."




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