The Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digest 10 of 2021

1.39 The committee draws its scrutiny concerns 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 the matters listed in subclause 9(6) which do not appear to be peculiarly within the knowledge of the defendant. [...] 1.45 In light of the explanation provided in the explanatory memorandum as to the retrospective application of the amendments proposed by the bill, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of applying the amendments in the bill on a retrospective basis. [...] In this instance the explanatory memorandum states that the reversal of the evidential burden of proof is appropriate because '…it is limited to reliance on the codified exception, and not the proving of innocence in and of itself'.25 1.50 While the committee's concerns will be heightened in relation to a reversal of the legal burden (requiring the defendant to positively prove the matter), the co. [...] Scrutiny Digest 10/21 23 (a) the day after the period of 30 months beginning on the day on which the standard commences; or (b) the day after the end of the period of 6 months beginning on the day after the report of the first review of a standard is published on the Department of Agriculture, Water and the Environment's website. [...] This is appropriate as it will be peculiarly within the knowledge of the defendant how and whether the conduct was disclosed to the Authority for the performance of its functions or powers (proposed section 56(6AA)) or the circumstances of the disclosure where the person was an official of the Authority and acquired the information in the course of their duties in relation to the Authority (propos.