COMMITTEES

Senator DEAN SMITH (Western Australia) (18:37): I present Scrutiny digest 12 of 2026 of the Standing Committee for the Scrutiny of Bills, dated 20 August 2026, together with ministerial correspondence received by the committee. I move: That the Senate take note of the report. As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny digest12 of 2026.

The digest contains the committee's consideration of nine bills introduced during the period of 7 September to 10 September 2026, and amendments agreed in relation to five bills. The digest also contains the committee's concluded examination of three previously introduced bills. I wish to draw senators' attention to the committee's concluding remarks in this digest that relate to the fundamental common law principle that an accused person is considered innocent until proven guilty by the prosecution—known as the presumption of innocence.

The committee's scrutiny of provisions that may undermine the presumption of innocence includes particular consideration of provisions that abrogate the privilege against self-incrimination or reverse the evidential burden of proof. The committee draws attention to such matters under standing order 24(1)(a)(i), which requires the committee to consider whether provisions of bills before the parliament trespass unduly on personal rights and liberties.

The privilege against self-incrimination protects individuals from being compelled to answer questions or produce documents or other material that may be used to establish their criminal liability. However, in some circumstances, legislation may require individuals to provide such information or material despite the risk of self-incrimination, with penalties attaching to a failure to comply.

As abrogation of the privilege against self-incrimination may represent a serious loss of personal liberty, the committee considers that any such abrogation should be supported by cogent justification. The committee accords particular weight to the inclusion of the full protection afforded by both 'use' and 'derivative use' immunities when considering whether an abrogation is adequately justified.

Absent the protection of a derivative use immunity, authorities may rely on a person's evidence to identify other material that facilitates the case against them, thereby requiring individuals to assist in the establishment of their own criminal liability. This scrutiny issue arose in the committee's consideration of the Interactive Gambling Amendment (Gambling Reform) Bill 2026, now an act.

The bill empowers the Australian Communications and Media Authority, or ACMA, to require persons and entities to provide certain information or documents, notwithstanding that compliance may tend to incriminate an individual. In Scrutiny digest 9 of 2026, the committee queried the absence of a derivative use immunity. Having considered the minister's response, the committee has noted that the stated alternative safeguards do not provide protection equivalent to that given by use and derivative use immunities together.

However, as the bill has passed both houses of the parliament, the committee made no further comment. Similarly, the committee will generally raise scrutiny concerns where exceptions to criminal offences require a defendant to raise evidence disproving elements of an offence. These reversed burden offences depart from the common-law requirement that the prosecution prove all elements of an offence beyond a reasonable doubt.

The committee's expectation is that explanatory memoranda set out why the matters relevant to the exceptions are peculiar within the defendant's knowledge or are otherwise more difficult or costly for the prosecution to disprove. The Trade and Investment Agreements (Consultation) Bill 2026 contains provisions which reverse the evidential burden of proof. This bill would authorise the disclosure of protected information to members of the Trade Advisory Group and provide offences for the unauthorised disclosure of this information.

In Scrutiny digest 9 of 2026, the committee queried the appropriateness of exemptions to the offences that reversed the evidential burden of proof. Having considered the minister's response, the committee has concluded that the explanatory materials do not adequately justify the reversal of the evidential burden. The committee has therefore drawn the provisions to the attention of senators.

With these comments, I commend the committee's Scrutiny digest 12 of 2026 to the Senate. Question agreed to.