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Monday, 21 April 1980
Page: 1580

Senator MISSEN (Victoria) - I give notice that 10 sitting days after today I shall move:

That the new section 20d contained in section 7 of the Flammable Liquids (Amendment) Ordinance 1980, contained in Australian Capital Territory Ordinance No. 2 of 1 980, and made under the Seat of Government (Administration) Act 1910, be disallowed.

I ask leave to make a brief statement in relation to the notice of motion I have just given.

Leave granted.

Senator MISSEN - This notice of motion has been given pursuant to the deliberations of the Standing Committee on Regulations and Ordinances. The ordinance in question deals with the handling of flammable liquids, and provides in the new section 20D that where there is a contravention of the ordinance the person responsible for the contravention and the occupier of the premises concerned are each guilty of an offence punishable by a heavy fine. The section then provides defences for the occupier of the premises, including the defence that the contravention was done without his knowledge.

The Committee has previously taken exception to provisions which provide absolute offences and then specify defences in a separate section or sub-section. As the Committee observed in its sixty-sixth report, such provisions have been interepreted by the courts as placing the onus of proof upon the defendant, even, in some cases, where there are no words which give any apparent clues to the allocation of the burden of proof. In its sixty-sixth report the Committee suggested that the only final solution to this problem would be a special statutory provision to the effect that all statutory provisions which have been interpreted as placing the onus of proof upon the defendant should be regarded as reversing only the burden of introducing evidence and not the burden of persuading the tribunal of fact.

The Committee still scrutinises legislation to ensure that this type of provision is not adopted unless there is good reason for doing so. In the case of this ordinance, it seems to the Committee that, in the provision in question, it is not necessary to have an absolute offence followed by defences, in that, if it is desired to penalise the occupier of the premises, the offence could be one of permitting the offence to occur. The Committee has put this view to the Minister for the Capital Territory, and, today being the last day for giving notice of a motion to disallow the ordinance, I have given such notice to allow the Committee time to consider the Minister's reply.

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