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Explanatory Statement Justice Legislation Amendment Bill 2015 (Serial 119)

Details:

Title

Explanatory Statement Justice Legislation Amendment Bill 2015 (Serial 119)

Other title

Tabled paper 1282

Collection

Tabled Papers for 12th Assembly 2012 - 2016; Tabled Papers; ParliamentNT

Date

2015-03-26

Description

Tabled by Johan Elferink

Notes

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.

Language

English

Subject

Tabled papers

Publisher name

Attorney-General

File type

application/pdf

Use

Copyright

Copyright owner

See publication

License

https://www.legislation.gov.au/Details/C2019C00548

Parent handle

https://hdl.handle.net/10070/273679

Citation address

https://hdl.handle.net/10070/426442

Page content

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