31.07.2015
11.129 A number of Commonwealth criminal offences reverse the legal burden of proof and may be seen as interfering with the principle that a person is presumed innocent until proved guilty according to law.
11.130 Offences that reverse the legal burden of proof on an issue essential to culpability arguably provide the greatest interference with the presumption of innocence, and their necessity requires the strongest justification.
11.131 This chapter has identified a range of such laws, including deeming provisions in relation to serious drug offences, and directors’ liability for taxation offences.
11.132 Further review of the reversals of the legal burden of proof in these laws may be warranted, including consideration of whether shifting the evidential burden only would be sufficient to balance the presumption of innocence with other legitimate objectives pursued by these laws.
11.133 This chapter has focused on reversals of the legal burden of proof in criminal laws, but notes that there can be a blurring of distinctions between criminal and civil penalties, such that some civil laws may be criminal in nature. Reversals of the burden of proof in such laws merit careful scrutiny.