Page 1326 - Week 05 - Tuesday, 9 April 2013
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also important to note here the importance of the right being protected—the right to the presumption of innocence.
The question then to be asked is: is the importance of this aim so great that we should create a situation where it is quite foreseeable that someone will be sentenced to imprisonment on the basis that they are presumed to intend to commit particular conduct when in reality they had no such intention? Does it warrant jettisoning the golden thread of our legal system—the right to be presumed innocent? This goes to the issue of proportionality, which forms the fourth test which I will get to in a moment.
However, the second test identified by Justice Penfold was:
Is the challenged provision rationally connected to its purpose (see ss 28(2)(c) and (d))? That is, does it achieve the relevant purpose without having an arbitrary or unfair operation and without relying on irrational considerations?
I believe the simple answer to this is no; the clause is nothing if not arbitrary. Presuming the intent to supply has no logical connection with the prohibition on possession and manufacture of very small quantities of drugs. Ordinarily presumptions are imposed on larger quantities for which there is a stronger connection with sale. This is the way drug laws have traditionally worked in every Australian jurisdiction. There is no logical reason to say that where a person has any quantity of controlled precursor they intend to sell the finished product.
The question must be asked: on what basis do we think that a person who will only produce a very small quantity of drugs intends to sell the drug? More than that, on what basis do we think that every person who has a small quantity of drugs always intends to sell them, such that it is appropriate to create a deeming provision that they intend to sell it, requiring them to prove otherwise?
Again, the simple answer is that there just is not one. As I said in the in-principle debate, we can all imagine a scenario where a foolish young person finds some instructions on the internet about what I understand is a relatively straightforward process of making particular drugs.
They have no intention about selling it, and quite possibly there is no evidence one way or the other about selling it. It is fundamentally wrong for this place, on behalf of the community, to deem that foolish young person to be a drug dealer unless they can prove they are not. Creating a situation where the mere fact that something cannot be proved one way or the other gives rise to the commission of a serious indictable offence is manifestly unfair, and the absence of a logical connection to the conduct makes it manifestly irrational.
Even accepting that the issue of drug syndicates is a reality and that the bill will do something to address this, the by-product of imposing the requirement on everyone, probably the majority of whom will have no connection to drug syndicates, is necessarily unfair.
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