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Legislative Assembly for the ACT: 2004 Week 09 Hansard (Tuesday, 17 August 2004) . . Page.. 3688 ..

assurance in the form of a statement of compatibility that the government’s bill is congruent with the Human Rights Act. I also point out that the government is not tabling a report on the human rights implications of the bills it puts before the Assembly, but just a one-sentence statement of compatibility. If the Attorney-General were serious about the implications of the Human Rights Act, he would fully inform the Assembly of all the issues before proceeding with a government bill. I understand that is the case in the United Kingdom. This is something the government needs to do more work on, and possibly something that the Assembly needs to revisit in its next term.

The bill also raises a broader question about the interaction of the criminal code and the Human Rights Act. Being the only jurisdiction with a bill of rights, the ACT is in a different position to other jurisdictions concerning the application of these laws. The Stanhope government has said that it is committed to the implementation of a model criminal code. It also said it wishes to abide by the new Human Rights Act. However, it appears that these two commitments are in conflict. So I pose the question to the Attorney-General: which commitment will prevail?

The Scrutiny of Bills Committee raised the question of whether the bill was compatible with the Human Rights Act and, in particular, with section 6 (2), the right to be judged innocent until proven guilty. The government’s bill is eroding this concept in ACT law, as this bill reverses the onus of proof onto defendants, requiring defendants to prove that they were not selling drugs. In effect, the bill instructs the court to assume that a person is guilty of a drug trafficking offence until they can prove themselves innocent. This is an incredibly dangerous precedent to set in the criminal law of the territory. It is contrary to the Human Rights Act and goes against centuries of our criminal justice system, which is based on the principle that you are innocent until proven guilty.

I am also extremely concerned that this Assembly appears willing to pass legislation without seeing the proposed quantities required for a drug offence to be a trafficable offence. In the past the opposition has made a great deal of noise about the content of regulations. We have even debated a motion to try to ensure the government does not develop subordinate legislation without the scrutiny of the Assembly. However, when it comes to one of the most extreme cases of criminal justice legislation we have seen in this Assembly, the opposition is silent on this issue. The government has stated that the intention of the regulation is to set prescribed quantities at a level that would not normally catch just users.

However, this is a fairly subjective exercise and I have fears that this legislation will catch drug users who are caught with just a slightly larger than usual amount of drugs. Equally, there is a great deal of research on the concept of user dealers—the little fish in the drug trade who deal small amounts of drugs to support their own habits—who will be uselessly captured by these laws. Locking these people up does not necessarily break the cycle of drugs in our community and does not support these people to deal with their addiction.

At this point I thank Family and Friends for Drug Law Reform, members of whom have joined us in the Assembly today, for their work in relation to this bill and the stark case studies that they put forward yesterday that illustrate the real life impacts of these bills. The government and the opposition should take those stories to heart when they vote on this legislation today. The government’s Criminal Code (Serious Drug Offences)

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