Page 1330 - Week 05 - Tuesday, 9 April 2013
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The practicalities of proof, the risk of conviction of the innocent, and the penalties applicable on conviction are likely to be key when assessing whether a reverse onus of proof is justified. Such onus may perhaps be justified when an accused is well-placed to prove a licence or formal qualification, especially if significant criminality is not in issue. It may also be more readily justified where the accused has assumed a particular risk. If an unrebutted presumption compels a verdict of significant criminal culpability, however, the better view may be that the prosecution must always bear the onus of proof and a reverse onus is not justified.
Considering the four tests set out in the ACT Supreme Court, it seems to me impossible to say that the clause is compatible with human rights. At best, it perhaps satisfies one of the four, remembering that the failure of any one of them equals invalidity. Together with the human rights issues which the clause raises and which are the primary grounds for the Greens’ objections to the clause, there are a couple of things that also need to be observed.
For completeness, another reason for the bill advanced by the Attorney-General in the debate is this statement in the explanatory statement:
The amendment will also bring the offence closer into line with other jurisdictions that use the presumption for this offence.
Again, I believe this is not correct. Neither the attorney nor the officials have been able to provide one example of a law anywhere in Australia that applies a presumption of sale to any quantity of a prohibited substance possessed.
There is one additional problem created by the amendment in that it simply does not make logical sense when you look at the broader operation of the code in relation to drug offences. At the point where you have the materials to make a drug but have not yet done so, you are deemed to be a drug trafficker; yet at the moment when you actually turn it into a drug, you are no longer deemed to be a drug trafficker. What does this say? “Hurry up and process the gear so that you don’t have to prove you didn’t intend to sell it.”
To finish where I began, looking back at the very noble aspirations the former Chief Minister had for the Human Rights Act, he said:
Human rights belong to everyone, and we are all diminished by breaches of human rights.
Should this clause pass in this place, there is no doubt that we will not be living up to these expectations that we have set for ourselves. To claim to be a place of leaders who recognise that rights protection is a difficult task, often with no clear answers, and that leaders will not succumb to the temptation to jettison rights to achieve particular outcomes—these aspirations ring hollow against the gravity of the limitation on what are supposed to be the most basic of rights. One has to ask the question: if this limitation is compatible with the Human Rights Act, exactly what does it protect against?
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