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
20 Clause 56. Section 93 amended Clause 56 of the Bill amends section 93(4) which creates a limited defence to the offence of obstructing a person conducting an inspection ordered by the Tribunal. Section 93(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. A legal burden completely 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. 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 127 amendedClause 57. Clause 57 of this Bill amends section 127 of the Northern Territory Civil and Administrative Tribunal Act by inserting a new note at the end of the section. Section 127 currently sets out the parties to a proceeding. The new note clarifies the effect of new section 140(1 A) that, despite section 127, the Tribunal is not a party to a proceeding for a review of a decision of the Northern Territory Civil and Administrative Tribunal in the exercise of its original jurisdiction. Section 136 amendedClause 58. Clause 58 of the Bill amends section 136(6) which creates a limited defence to the offence of failing to comply with a condition of a persons release. Section 136(6) 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. A legal burden completely 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.