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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER)
AMENDMENT BILL 2021
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Indigenous Australians,
the Honourable Ken Wyatt AM MP)
CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER)
AMENDMENT BILL 2021
OUTLINE
1. The schedule of amendments to the Corporations (Aboriginal and Torres Strait
Islander) Amendment Bill 2021 (the Bill) described in this supplementary explanatory
memorandum responds to the following two recommendations of the Scrutiny of Bills
Committee in Scrutiny Digest 14 of 2021 dated 1 September 2021:
• 1.19 From a scrutiny perspective, the committee considers that the bill should
be amended to remove the penalty of imprisonment from the strict liability
offence in subsection 180-37(3), consistent with the principles set out in the
Guide to Framing Commonwealth Offences.1
• 1.13 The committee further suggests that it may be appropriate for the bill to
be amended to provide that the defences set out at proposed subsection 201-
150(5) are instead specified as elements of the offence.
2. The proposed schedule of amendments to the Bill includes:
• Schedule 1, item 81 [penalty for offence] - amend the proposed strict liability
offence in subsection 180-37(3) of the Bill by removing the penalty of
imprisonment.
• Schedule 1, item 126 [burden of proof for offence] - amend proposed
subsection 201-150 of the Bill to provide that the defences are instead
specified as elements of the offence thereby placing the onus of the
prosecution to prove those matters.
FINANCIAL IMPACT STATEMENT
3. The schedule of amendments has no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
4. The schedule of amendments to the Bill is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
5. The Statement of Compatibility with Human Rights is provided at the end of this
supplementary explanatory memorandum.
1
Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers, September 2011
1
NOTES ON CLAUSES - AMENDMENTS TO SCHEDULE 1 OF THE BILL
Amendment 1 [penalty for offence]: item 81 (section 180-37) - Register of members to be
given to the Registrar annually
1. This amendment removes the penalty of imprisonment from schedule 1, item 81, page
34 (line 9) of the Bill.
2. The effect of this amendment is that the strict liability offence at item 81 (subsection
180-37(3)) no longer carries with it a possible term of 6 months imprisonment. As a
result, the strict liability offence at item 81 will only carry the penalty of 25 penalty
units.
3. To reflect this proposed amendment, paragraph 133 from the notes on clauses in the
explanatory memorandum is removed and replaced with:
133. Subsection 180-37(3) creates a strict liability offence with a penalty of 25
penalty units for failing to lodge the registers with the Registrar as required.
4. This amendment responds to the Scrutiny of Bills Committee's Scrutiny Digest 14 of
2021 dated 1 September 2021 and has the result of amending the clause so that it is
consistent with the principles set out in the Guide to Framing Commonwealth
Offences.2
5. The amendment accepts the longstanding scrutiny view that it is inappropriate to
apply strict liability in circumstances where a period of imprisonment may be
imposed. The amendment acknowledges the committee's comment that it does not
consider that consistency with existing provisions is a sufficient justification for
including strict liability offences with a penalty of imprisonment.
Amendment 2 [burden of proof for offence]: item 126 (section 201-150) - Corporation must
hold an AGM
6. This amendment removes the item at lines 10 to 26 of page 46, item 126, schedule 1
of the Bill and replaces it with a new item.
7. The effect of this amendment is that the defences set out at proposed subsection 201-
150(5) are instead specified as elements of the offence in proposed subsection 201-
150(1).
8. To reflect this proposed amendment, paragraphs 175 and 176 (and the related
heading) from the notes on clauses in the explanatory memorandum are removed and
replaced with:
2
Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers, September 2011
2
Item 126 - Subsection 201-150(1)
175. This item repeals the existing subsection 201-150(1) and replaces it with
a new subsection 201-150(1), which provides that a corporation commits an
offence if (a) it does not hold an AGM within 5 months after the end of the
financial year and (b) none of the following circumstances exist (which would
exempt the corporation from the requirement to hold the AGM):
i. that the corporation has made a statement to the Registrar in
accordance with section 348-10 in relation to its AGM and
reports for the financial year;
ii. that the registrar has granted the corporation an extension for a
period for holding the AGM under subsection 201-155(2);
iii. that a special resolution under section 201-175 to not hold an
AGM was in place at the end of the 5 month period; or
iv. that the Registrar has given a direction under section 201-190
specifying a different period in which the AGM is required to
be held.
176. In this case, the matters in proposed paragraph 201-150(1)(b) are not
considered matters peculiarly within the defendant's knowledge that would be
difficult or costly for the prosecution to prove. As such it is appropriate to
include these matters as elements of the offence.
9. This amendment responds to the Scrutiny of Bills Committee's Scrutiny Digest 14 of
2021 dated 1 September 2021 and is consistent with the Guide to Framing
Commonwealth Offences3 which provides that a matter should only be included in an
offence-specific defence (as opposed to being specified as an element of the offence),
where it is peculiarly within the knowledge of the defendant or where proof by the
prosecution of a particular matter would be extremely difficult or expensive.
3
Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers, September 2011, section 4.3.1
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
1. The schedule of amendments to the Corporations (Aboriginal and Torres Strait
Islander) Bill 2021 (the Bill) is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
2. The schedule of amendments is made in response to two of the recommendations of
the Scrutiny of Bills Committee in Scrutiny Digest 14 of 2021 dated 1 September
2021:
• 1.19 From a scrutiny perspective, the committee considers that the bill should
be amended to remove the penalty of imprisonment from the strict liability
offence in subsection 180-37(3), consistent with the principles set out in the
Guide to Framing Commonwealth Offences.4
• 1.13 The committee further suggests that it may be appropriate for the bill to
be amended to provide that the defences set out at proposed subsection 201-
150(5) are instead specified as elements of the offence.
3. The proposed schedule of amendments to the Bill includes:
• Schedule 1, item 81 [penalty for offence] - amend the proposed strict liability
offence in subsection 180-37(3) of the Bill by removing the penalty of
imprisonment.
• Schedule 1, item 126 [burden of proof for offence] - amend proposed
subsection 201-150 of the Bill to provide that the defences are instead
specified as elements of the offence thereby placing the onus of the
prosecution to prove those matters.
Human rights implications
4. The schedule of amendments improves the engagement of the Bill with the human
rights and freedoms set out in the original Statement of Compatibility with Human
Rights in the Explanatory Memorandum to the Bill.
5. The original Statement of Compatibility with Human Rights for the Bill is amended
as follows to reflect the government amendments:
Amendment 1: penalty for offence
In paragraph 26:
• remove the last sentence in paragraph 26; and
• insert the words "81 (register of members)," after the words "78 (request
redaction of information),".
4
Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers, September 2011
4
Amendment 2: burden of proof for offence
Remove paragraph 25 and replace with it the following:
25. Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. An offence provision which requires
the defendant to carry an evidential burden of proof, commonly referred to as
a 'reverse burden offence', with regard to the existence of some fact, engages
and limits the presumption of innocence. The reverse burden offence in the
Bill at item 6 (production of books) is considered 'reasonable, necessary and
proportionate'. It is justified having regard to the regulatory nature of the
offence provisions, and because the facts that the defendant must prove will be
matters that are peculiarly within their knowledge. The provisions are
compatible with the presumption of innocence in that they give the person best
placed to do so, an opportunity to put forward a reasonable excuse for a failure
to comply and to adduce or point to evidence that suggests a reasonable
possibility that the matter (reasonable excuse) exists. The defence of
reasonable excuse ensures a person is not penalised where they may have
legitimate reasons for being unable to produce a document due to reasons
beyond their control, or where there is some other good and acceptable reason.
A defence of reasonable excuse does not affect the application of the specific
defences of general application set out in Part 2.3 of the Criminal Code such
as duress, mistake or ignorance of fact, intervening conduct or event, lawful
authority.
Conclusion
6. The schedule of amendments improves the compatibility of the Bill with human rights
and does not engage any human rights issues beyond those identified in the original
Statement of Compatibility with Human Rights prepared for the Bill.
5
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