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Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017

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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 C riminal 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.

 

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.”