Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I am happy to, Senator Wright. This is a red –herring argument which has been raised many times. There is no reversal of the onus of proof here at all. The way the criminal law works is that an offence—let us assume we are talking about statutory offences—is defined and the prosecution bears the onus of proving every element of that offence beyond reasonable doubt. Then defences are provided for. If an accused person seeks to rely upon a defence then they have to bring forward evidence to discharge what, as you would know as a lawyer, Senator Wright, is known as 'the evidential onus', to show that there is sufficient material upon which that defence may be invoked. That is not a reversal of the onus of proof. It is merely to say that, if a criminal defendant seeks to rely upon a defence, he or she has to bring sufficient facts before the court to demonstrate the availability of that defence. That has never been regarded as a reversal of the onus of proof.