Page 1325 - Week 05 - Tuesday, 9 April 2013
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The reality now is that it appears that we have a yardstick against which to watch the whittling away of rights protection.
Fully cognisant of the consequences, and with a clear standard against which to measure their conduct, the government is proposing a law that has been criticised by the human rights commissioner and which will quite possibly be the first law found to be incompatible with our protected human rights that has been passed since the adoption of the Human Rights Act.
There is no doubt—and the government acknowledges—that the clause creates a significant limitation on the right to the presumption of innocence. The question that remains to be resolved is whether or not the limitation is justified under section 28 of the Human Rights Act.
There has only been one declaration of incompatibility issued by the Supreme Court so far. In the matter of an application for bail by Islam, Justice Penfold set out the application of the section 28 test as follows. There were four components. The first question she posed was:
Is the purpose of the limitation of sufficient importance to warrant overriding the recognised human right (see ss 28(2)(a) and (b) of the Human Rights Act)?
The explanatory statement to the bill that we are debating today sets this out:
The purpose of this amendment is to address concerns about the enforceability of the possession of controlled precursor offences at section 612 of the Criminal Code 2002.
It also states:
Additionally, the purpose of this amendment is to support the overarching purpose of the ACT’s serious drug offences.
At the in-principle stage the Attorney-General said that the clause was “designed to attack organised crime and disrupt the manufacture and supply of drugs to them”. He elaborated that this would be achieved by preventing criminal organisations from spreading the risk of drug manufacture.
Certainly, in a general sense, controlling drugs and disrupting drug supply is an important purpose and a change designed to improve the effectiveness of a provision to better disrupt the manufacture and supply of these types of drugs is a legitimate end. However, there are a couple of important points to note. Firstly, the end product of the change will be a provision that operates to deter drug manufacture offences by deeming that the manufacture is for supply. In this case, we are talking about potentially the most minor quantities of particular substances rather than the commercial supply of significant quantities of drugs. The purpose therefore must be characterised as strengthening the prohibition on small-scale production. In the scheme of controlling drug use, this is clearly at the lower end of the spectrum. It is
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