Chipping Away at Freedom

Australians’ legal rights are under an ongoing assault. Every year new laws are passed that undermine the principles of the legal system which are designed to protect our liberty. These principles are nonnegotiable, and in Australia they take the form of a collection of vital legal rights.

These rights have developed over more than 800 years of English common law. This long process has given birth to the presumption of innocence, the right to silence, the right to a fair trial, the right to appeal, and the rule of law. These are the cornerstones of a just legal system.

Attempts to undermine legal rights should be viewed with ferocious scepticism. Laws that damage these rights erode the freedom they have been created to protect. Yet many such laws have found their way into the statute books.

In 1904, a provision in Australian law reversed the burden of proof for the first time. This unenviable milestone was achieved following the passage of subsection 9(3) of the Conciliation and Arbitration Act 1904. Subsection 9(3) effectively removed employers’ presumption of innocence by reversing the burden of proof in cases where they were accused of dismissing an employee for being a member of a trade union. Today’s Fair Work Act 2009 still contains a provision—section 361— which reverses the burden of proof.

In the 110 years since 1904 there has been an explosion in the number of laws that reverse the burden of proof. In December 2014, the IPA released its report—The state of fundamental legal rights in Australia: an audit of federal law—which documents the current state of play. Today there are no fewer than 48 provisions in current Commonwealth legislation that place the burden of proving an element of the case on the defendant.

Other important legal rights are in a similar state of disrepair. Along with breaches of the presumption of innocence, our report also recorded breaches of the right to silence, the privilege against self-incrimination and the right to natural justice. In all cases, the number of provisions breaching legal rights is astonishingly high.

The 48 laws that reverse the onus of proof are contained in thirteen separate acts of the Commonwealth Parliament. 92 provisions in 55 acts restrict rights to natural justice. Fourteen provisions in eleven acts remove the right to silence, and an extraordinary 108 provisions in 79 acts strip away the privilege against self-incrimination.

The rationale for the creation of these legal rights is the idea that liberty is too important to take from a person without compelling evidence of wrongdoing, presented in the course of a fair and robust legal process. Every law that takes away legal rights is another crack in the shield that protects our freedom.

Our research clearly shows that politicians of every stripe have removed legal rights. The argument in favour of removing legal rights often follows a familiar pattern: a problem is identified, it is cast as being particularly persistent, and a solution is offered which includes the necessary erosion of legal rights.

Perhaps unsurprisingly, this strategy has proved to be highly effective. The maintenance of legal rights is rarely efficient. It is expensive and it is imperfect. However, the justification for the creation and maintenance of such rights has always been the same— that liberty and justice are values too important to cast aside in favour of short-term efficiency.

History also demonstrates why legal rights are so important. In seventeenth century England, the Court of Star Chamber became a symbol of oppression by the monarchy.

King Charles I used the court to ruthlessly punish his political opponents and prosecute dissenters.

The Court of Star Chamber was infamous for delivering judgments favourable to the King.

One of the things that made the Court of Star Chamber so dominant was its power to force those accused of wrongdoing to testify before it. The accused had to take an ex officio oath, forcing them to answer all questions asked during the trial.

The use of this coercive power gave rise to a ‘cruel trilemma’. Guilty defendants had the choice of perjuring themselves if they falsely denied guilt, facing contempt of court charges if they refused to answer questions, or abdicating their natural right to self-preservation by admitting wrongdoing and incriminating themselves.

Widespread acknowledgment that this practice was unacceptable led to the abolition of the Star Chamber in 1641. This appalling chapter in the history of the English legal system was a catalyst for the development of legal rights.

The common law is rooted in the idea that free citizens are permitted to do anything so long as a law explicitly states that their conduct is unlawful. And it built this idea into the procedures of the court through an accusatorial—as opposed to an inquisitorial—system that relies on the production of evidence by the accusing party.

But in 2015, a number of administrative and regulatory bodies have the same coercive powers given to the original Star Chamber.

One such body is the Australian Competition and Consumer Commission (ACCC). The ACCC is one of the most powerful regulators in Australia. It has the power to compel the production of documents, even in cases where such information may be self-incriminatory, and in some cases it is not bound to follow the normal principles of natural justice. The ACCC is also responsible for regulating provisions which reverse the burden of proof.

The existence of such powers is consistent with our analysis. We found that the areas of economic and financial regulation had the highest numbers of legal rights’ breaches. The Australian Taxation Office and Australian Securities and Investments Commission also have extraordinary powers which breach a number of legal rights.

Our research included the categorisation of each legal rights breach. The top categories with legal rights breaches are taxation and finance with 33 breaches. Trade and commerce come a very close second with 32 breaches. Environmental law and industrial relations law also featured in the top ten categories with fifteen breaches each.

This demonstrates that the burden of these breaches is overwhelmingly being placed on the business community. A comparison of businesses and unions also revealed a stark contrast.

On our figures, no fewer than 43 breaching provisions apply to companies and their directors and agents, while just two apply directly to union officials. A further eighteen are applicable to both groups.

The Abbott government now has an opportunity to reform an area of policy that is crying out for attention. The Australian Law Reform Commission (ALRC) is currently conducting a Freedoms Inquiry, after being directed by the Attorney- General George Brandis to review Commonwealth laws with a view of highlighting those laws that breach traditional freedoms and privileges. The report handed down by the ALRC will build on our audit to provide the government with a blueprint for reform. The next steps are simple but will require a newfound respect for our fundamental legal rights.

The Abbott government must repeal existing provisions that breach legal rights and it must not introduce any further provisions that remove or restrict legal rights. At stake is nothing less than the most important ideals of any legal system: justice and the protection of liberty.