Webb DuncanPart 2 Brokering activity registration and permitsDr DUNCAN WEBB (Labour—Christchurch Central): This is really the substantive part of the bill so I'm sure a lot of my friends in the committee will be leaping to their feet to discuss this part as well. I want to focus in particular on the offence parts of the bill and these are found in clause 9 and clause 9A as well. Clause 9A is of particular importance because clause 9A carves out some particular exceptions to the offences of brokering without a permit or without registration.There are a couple of things really that I would put to the Minister in the chair the Hon Tracey Martin. I'm really just alerting them because I think they're probably dealt with satisfactorily but I do think they are worthy of the attention of the House because of the questions of onus that arise. It's really about burdens of proof and presumptions of innocence. So we have for example clause 9 which doesn't apply to a person who carries out a brokering activity on behalf of the person's employer but only if in relation to that activity the person has reasonable grounds to believe that the employer complies with clause 9. So we've got a question there of whether there is a positive belief. The question I suppose is: what if there is no belief whatsoever? What if they never even turned their mind to that—no idea for example of the illegality?We only moments ago were speaking of dual-use goods—the fact that things as innocuous-looking as software can be a dual-use good which in fact is regulated under this legislation. So that's one question there: what amounts to reasonable grounds to believe? And of course earlier on in clause 9A in fact we've got dual-use goods where the person has taken reasonable steps to ensure that the dual-use goods will not be used for a prohibited use."Dual-use goods raise particular problems because so many of them—and I have not read the entire Strategic Goods List but I did actually have a good look at it. Some things you would kind of know have a possible military application—like for example a gunsight might have an entirely non-military application but equally we would expect to know. But when we've got things which are things like software or even defensive clothing—a Kevlar vest which might have a perfectly good security use for a security guard but is in fact regulated as a dual-use good—is it reasonable to expect someone to turn their mind to that question and take "reasonable steps to ensure"? So that's the first thing I'd say about that.The next thing is how those defensives work. So the question then becomes if there has been a brokering in arms without a permit what are the procedural steps? We then turn to clause 10 and we note that in clause 10(1A) it is presumed "in the absence of any evidence to the contrary that an exception … does not apply." So the onus actually falls on the defendant the person who is accused in proving that a defence does apply. I think probably the appropriate threshold is that they have to raise some evidence.We've got this quite unusual at least to the layperson problem of a shifting onus where the defendant has the onus to show some evidence and then the prosecution has the onus of showing that the evidence doesn't go far enough to establish the defence. In fact only then do we shift on to the onus to prove the offence itself. So there are some questions that I would raise around really the criminal procedure around these quite unusual provisions particularly because they are unexpected. There's a real risk that people may find themselves being charged for trading in goods which they had no idea were in fact regulated. Thank you."