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Barry O’Farrell’s anti-bikie laws violate presumption of innocence

August 15, 2012

August 15, 2012, Kirk McKenzie, ‘NSW Bikie Laws Will Catch Innocents’ New Matilda – Decades of Australian criminal law precedent and international law under the International Covenant on Civil and Political Rights are violated under the Premier’s reinstated sections to the State’s Crimes Act, which grants the NSW police force the power to imprison an individual for communicating with an ex-offender. To quote the article:

The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with “habitual consorting”, punishable by up to 3 years imprisonment!

If in the US, this would clearly violate both the First Amendment – freedom of speech and association (the latter is implicit but judicially upheld), along with the Fifth Amendment – due process. While one may attempt to justify such a law on the basis that it only implies to serious, indictable offences, they would do well to be reminded that crimes as trivial as shoplifting are still indictable offences and largely dealt with in Magistrates Courts. As bad as this sounds, the true devil lies within these details: it doesn’t matter whom associates with whom. Ordinarily I would summarise a piece, but the article explains this perfectly:

A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was “reasonable in the circumstances”. This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.

Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.

The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.

There goes the Fifth Amendment (again: in this instance, the right to silence), and even the Sixth Amendment – right to counsel – is severely limited under these laws. It places the onus upon the individual to clear themselves, when otherwise unreasonable charges have been placed against them. Of course it is unlikely that the NSW Police will begin implementing this at all levels, but the law itself is a great injustice and appears blatantly unconstitutional, or at least is in great contradiction with the precedents and norms of criminal law. The article does well to mention the fact that this will be a particular injustice amongst Indigenous Australians, whom are likelier to live in higher crime areas and face greater police scrutiny.

This is a bizarrely invasive and ridiculous law which is unlikely to do anything about bikies in Sydney; which in and of itself is simply another example of curbing civil liberties in the face of “state security”.




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