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Competition and Consumer Amendment (Australian Food Labelling) Bill 2012

Introduced into the House of Representatives on 17 September 2012
By: Mr Adam Bandt MP

Competition and Consumer Amendment (Australian Food Labelling) Bill 2012 [No 2]

Introduced into the Senate on 17 September 2012
By: Senator Christine Milne

Committee view

1.2        The committee seeks further information with regard to the reverse burden provisions in the bills before forming a view whether they are compatible with the presumption of innocence in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

Purpose of the bill

1.3        These are identical bills which amend the Competition and Consumer Act 2010 to create new definitions and standards in relation to the country of origin labelling on packaged and non-packaged food. The bills also make consequential amendments to the Imported Food Control Act 1992 to reflect the changes to the Competition and Consumer Act 2010.

1.4        The statement of compatibility states that the bill is compatible with human rights because it does not engage any of the applicable rights or freedoms.

Compatibility with human rights

Presumption of innocence

1.5        The bills introduce civil penalty provisions for contraventions of the new food labelling requirements. Proposed subsection 137C(3) in item 3 prohibits a person from possessing or having control of food for the purposes of trade or commerce that does not comply with the prescribed food labelling requirements. Subsection 137C(4) provides that it is a defence if the person proves that their possession or control of the food was not for the purpose of supplying the food. New subsection 137C(3) therefore places a legal burden of proof on the defendant in respect of the existence (or non-existence) of the facts set out in ss 137C(4). Proposed subsection 9(1B) in item 18 of the bills places an evidential burden on defendants with regard to an offence in subsection 9(1A) of the Imported Food Control Act 1992. The offence carries a penalty of 10 years imprisonment. 

1.6        Article 14(2) of (ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

1.7        The protections in article 14(2) of the ICCPR are applicable in criminal proceedings. However, the approach under international and comparative human rights law has been to look at the substance and the effect of the proceedings, rather than their label. Accordingly, it is possible for a civil penalty regime which subjects a person to a high penalty and is intended to be punitive or deterrent in nature to constitute a ‘criminal charge’ for the purposes of the presumption of innocence in article 14(2) of ICCPR.

1.8        Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. An offence provision which requires the defendant to carry an evidential or legal burden of proof with regard to the existence of some fact will engage the presumption of innocence because a defendant’s failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt.

1.9        However, reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, the reverse burden must pursue a legitimate aim and be reasonable, necessary and proportionate to that aim. Human rights case‐law has established that relevant factors to consider when determining if a reverse burden provision is justified include whether:

• the penalties are at the lower end of the scale;
• the offences arise in a regulatory context where participants may be expected to know their duties and obligations; and
• the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

1.10      While provisions which impose only an evidential burden are more likely to be considered compatible with the presumption of innocence, they will still require to be properly justified, particularly where the burden relates to an essential element of the offence.

1.11      The statement does not address whether the reverse burden provisions in the bills are compatible with the presumption of innocence in article 14(2) of ICCPR.

1.12      The committee proposes to write to Senator Milne and Mr Bandt to request a justification for the reverse burden provisions in the bills before forming a view whether they are compatible with the presumption of innocence in article 14(2) of ICCPR.

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