Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

That's right—your adverse reflection on me! In relation to the reversal of evidential burden of proof, section 45AC would create an offence for failing to comply with a notice from the secretary requiring the production of information for documents, and the proposed new subsection 45AC(3) provides a defence of reasonable excuse for the offence of failing to comply with a notice from the secretary requiring the production of information or documents that are relevant to a contravention or possible contravention of the act or regulations. Therefore, the offence does not apply if a person has a reasonable excuse, but the defendant has to prove this.

The note to the subsection provides that the defendant bears an evidential burden in relation to this matter. A reasonable excuse defence is appropriate because the matters comprising the offence would generally be known only to the defendant. For example, they did not comply because they were in hospital, they were dealing with an emergency or a natural disaster, or something to that effect. It would be significantly more difficult for the prosecution to prove that. The proposed defence only involves an evidential burden for the defendant to point to evidence that suggests a reasonable possibility that the matter comprising the excuse exists, rather than a legal burden of proof.