9.123 Reversal of the legal burden of proof on an issue essential to culpability in an offence arguably provides the greatest interference with the presumption of innocence, and its necessity requires the strongest justification.
9.124 The ALRC concludes that further review of the reversals of the legal burden of proof in these laws may be warranted, to determine whether they unjustifiably interfere with the presumption of innocence. Laws that may merit further review include deeming provisions in relation to the requisite intention or belief for serious drug offences, and to directors’ liability for taxation offences committed by a corporation. Any such review should consider whether placing an evidential rather than legal burden on the defendant would be sufficient to balance the presumption of innocence with the legitimate objectives pursued by these laws.
9.125 The ALRC notes that there can be a blurring of distinctions between criminal and civil penalties, such that some civil laws may effectively be criminal in nature. Reversals of the burden of proof in such laws merit careful scrutiny.