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Thursday, 5 April 1984
Page: 1332

Senator GARETH EVANS (Attorney-General)(5.56) —I will be brief as I understand the Committee wishes to go on with other business. Senator Missen has given his own answer to the first problem. The Commonwealth wants to have Administrative Appeals Tribunal review proceedings, but the vagaries of the Federal system, which is so avidly supported by Senator Archer and others who are waving at me from the other side of the chamber make that impossible at this stage. However, I remind Senator Missen that the Ombudsman still has jurisdiction and the Administrative Decisions (Judicial Review) Act still has an application. So the areas of decision making under this legislation are not wholly immune from administrative review.

As to the latter point that Senator Missen makes about clause 57 (1), I simply say that I beg to differ with him. I believe that the clause as presently drafted does confirm the persuasive onus as being borne by the Crown in proving beyond reasonable doubt the existence of any matters listed in the court which an inspector has reason to believe. The defendant under this clause has the burden only of presenting evidence to the contrary rather than proof to the contrary. This is a tricky and difficult technical area about which it is possible for reasonable men and women to differ, I readily acknowledge, and this is obviously something that we will have to go on debating. Incidentally in that context I hope that the Government will be shortly in a position to table its response to the excellent report of the Senate Standing Committee for the Scrutiny of Bills on the onus of proof. But the matters to which Senator Missen draws attention have been taken into account and we have done our best to get them right to the extent that it was possible to do so.