11th Sep 2017, 9:40 PM – Senate Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 - in Committee - Burden of proof

The majority voted against amendments introduced by ACT Senator Katy Gallagher (Labor), which means they were not successful.

Senator Gallagher explained that:

With the way the government's bill is drafted, the directors don't have to prove that they have the benefit of the defence. Instead, once directors bring evidence that satisfies an evidentiary burden that suggests a reasonable possibility that the matters exist or do not exist in that they are entitled to the safe harbour, the burden of proof or the legal burden falls on the party bringing proceedings to prove that the director is not entitled to the safe harbour. Our amendments on sheet 8224 would mean that directors who want to access the safe harbour bear the burden of proof in showing that they are genuinely taking a reasonable course of action to turn the company around. This is consistent with other existing defences to liability for insolvent trading.

Amendment text

(1) Schedule 1, item 1, page 3 (lines 7 to 13), omit all the words from and including "evidence" to the end of subsection 588E(8A), substitute:

it has been proved that:

(a) subsection 588GA(1) applies in relation to a person and a debt; or

(b) subsection 588WA(1) applies in relation to a corporation and a debt;

it must be presumed that the relevant subsection applies in relation to the person or the corporation and the debt.

(2) Schedule 1, item 2, page 3 (line 16), after "harbour", insert "defence".

(3) Schedule 1, item 2, page 3 (lines 19 and 20), omit "Subsection 588G(2) does not apply in relation to a person and a debt if", substitute "In any proceedings against a person under subsection 588G(2), it is a defence if the person proves, in relation to a debt, that".

(4) Schedule 1, item 2, page 4 (line 7), omit "an evidential", substitute "a legal".

(5) Schedule 1, item 2, page 4 (lines 13 to 15), omit all the words from and including "For" to "whether", substitute "For the purposes of subsection (1), a course of action is reasonably likely to lead to a better outcome for the company only if".

(6) Schedule 1, item 2, page 4 (line 18), omit "or", substitute "and".

(7) Schedule 1, item 2, page 4 (line 21), omit "or", substitute "and".

(8) Schedule 1, item 2, page 4 (line 24), omit "or", substitute "and".

(9) Schedule 1, item 2, page 4 (line 27), omit "or", substitute "and".

(10) Schedule 1, item 2, page 4 (lines 31 and 32), omit "an evidential", substitute "a legal".

(11) Schedule 1, item 2, page 6 (lines 4 to 6), omit the definition of evidential burden in subsection 588GA(7), substitute:

legal burden, in relation to a matter, means the burden of proving the existence of the matter.

(12) Schedule 1, item 4, page 8 (line 15), after "harbour", insert "defence".

(13) Schedule 1, item 4, page 8 (lines 17 and 18), omit all words from and including "Subsection" to "debt, if", substitute "In any proceedings against a corporation under section 588W, it is a defence if".

(14) Schedule 1, item 4, page 8 (lines 27 and 28), omit "an evidential", substitute "a legal".

(15) Schedule 1, item 4, page 9 (lines 1 to 3), omit the definition of evidential burden in subsection 588WA(3), substitute:

legal burden, in relation to a matter, means the burden of proving the existence of the matter.