Explanatory Statement Justice Legislation Amendment Bill 2015 (Serial 119)
Tabled paper 1282
Tabled Papers for 12th Assembly 2012 - 2016; Tabled Papers; ParliamentNT
2015-03-26
Tabled by Johan Elferink
Made available by the Legislative Assembly of the Northern Territory under Standing Order 240. Where copyright subsists with a third party it remains with the original owner and permission may be required to reuse the material.
English
Tabled papers
Attorney-General
application/pdf
Copyright
See publication
https://www.legislation.gov.au/Details/C2019C00548
https://hdl.handle.net/10070/273679
https://hdl.handle.net/10070/426442
19 Administrative Tribunal Act, to preserve the existing ability for orders to also be enforced by way or prosecution. Section 86 amended Clause 54 of the Bill amends section 86(2) which creates a limited defence to the offence of contempt of the Tribunal. Section 86(2) currently provides that it is a defence if the defendant establishes a reasonable excuse. The use of the word establishes in the context of the defence creates ambiguity as to whether the defendant has an evidential or legal burden in establishing the defence. Generally the common law provides that such defences attract an evidential burden (unless a legal burden is clearly applied). This means that the defendants need to only raise and provide evidence of the defence. A legal burden shifts the burden for establishing or proving the defence to the defendant. However, the use of the word establish is ambiguous as it does not clarify to what extent the defendant must establish the defence. Clause 54. The policy intent for this offence is that the defence attracts the most common burden ie an evidentiary burden. The use of the word has rather than establish clarifies this position so that the common law position (ie the evidentiary burden) clearly applies. Section 90 amendedClause 55. Clause 55 of the Bill amends section 90(4) which creates a limited defence to the offence of failing to comply with a summons issued by the Tribunal. Section 90(4) currently provides that it is a defence if the defendant establishes a reasonable excuse. The use of the word establishes in the context of the defence creates ambiguity as to whether the defendant has an evidential or legal burden in establishing the defence. Generally the common law provides that such defences attract an evidential burden (unless a legal burden is clearly applied). This means that the defendant needs to only raise and provide evidence of the defence, burden for establishing or proving the defence to the defendant. However, the use of the word establish is ambiguous as it does not clarify to what extent the defendant must establish the defence. The policy intent for this offence is that the defence attracts the most common burden ie an evidentiary burden. The use of the word has rather than establish clarifies this position, so that the common law position (ie the evidentiary burden) clearly applies. A legal burden completely shifts the