Supplementary Explanatory Memorandum
(Circulated by authority of the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash)ADDENDUM TO THE EXPLANATORY MEMORANDUM
Background
This Supplementary Explanatory Memorandum also incorporates additional material to the combined Explanatory Memorandum to the Payment Times Reporting Bill 2020 and the Payment Times Reporting (Consequential Amendments) Bill 2020. This material addresses the request raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 9 of 2020, dated 6 August 2020 to include the additional information provided in the Minister's response in an addendum to the Explanatory Memorandum.
The Senate Standing Committee requested that an addendum to the Explanatory Memorandum containing the key information provided by the Minister on the use of an offence-specific defence be tabled in the Parliament as soon as practicable.
Additional information for the Explanatory Memorandum
1. Page 38, at the end of the discussion on "Section 46: Unauthorised use or disclosure", after paragraph 212, add:
212A. Subsection 46(1) provides that an entrusted person will commit an offence if the person uses or discloses protected information in an unauthorised way. Subsection 46(2) creates a defence to the offence in subsection 46(1), if the use or disclosure of protected information was done in good faith and in purported compliance with Part 5 of the Act relating to protected information, or with the Rules.
212B. The rationale for the use of an offence-specific defence in section 46 of the Bill is consistent with the relevant principles set out in the Guide to Framing Commonwealth Offences. As explained in that Guide, it is reasonable and necessary for the burden of proof to be placed on the defendant where the facts in relation to the defence are peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
212C. In the case of a defence to an offence under subsection 46(1), the defendant is best placed to explain why they should be considered to be acting in good faith and purported compliance with the Act. This is because the defendant is best placed to explain their motivations when engaging in the relevant conduct as to how and why they should be considered to be acting in good faith and in purported compliance with the Act when they disclose protected information. It would also be unnecessary and significantly costly if the prosection was required to disprove these factors given the prosecution would not have ready access to evidence going to the defendant's state of mind and motivations.