Some Are More Innocent Than Others

Written by:
10 November 2017
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A few days ago, Attorney-General George Brandis got a bit confused. He said that the debate about the citizenship status of politicians was becoming a “witch hunt” and “this is not Salem in the 1690s, where we go around whispering allegations about other people on the basis of no facts whatsoever”.

But in Salem in the 1690s, there were no witches. In Australia in 2017, there were politicians sitting in Parliament who shouldn’t have been. Six of them have already quit or been forced to quit. When you go on a witch hunt, you’re looking for something that doesn’t exist. Unfortunately for the Turnbull government, politicians ineligible to be in Parliament do exist, and on December 2 there’s a byelection in Barnaby Joyce’s seat to prove it.

If the Attorney-General is seeking to draw some lessons from 17th-century history, he should go back a bit further to the time of the English Civil War. In 1647, the Levellers issued a statement regarded at the time as impossibly radical, but which ultimately came to be the foundation principle of liberal democracy – “parliaments are to receive the extent of their power and trust from those that betrust them”.

The ironies of the citizenship fiasco abound. The Coalition and Labor both support proposed, unprecedented legislation requiring bank executives to perform their roles “with honesty and integrity, and with due skill, care and diligence”.

If executives breach these provisions, the bank that employs them is liable to be fined up to $200 million. But when some politicians quite obviously don’t act with honesty or integrity or due skill or care or diligence, the cry goes up from other politicians, “Stop the witch hunt!” It’s such double standards that makes Australians vote for someone not from the major party cartel.

Even more breathtaking is what deputy Labor leader Tanya Plibersek said in August. She claimed politicians shouldn’t have to prove they were eligible to be in Parliament. “Why should we? We live in a free country, where we have a presumption of innocence, where we don’t have a reverse onus of proof. If people have an allegation to make, by all means they should make it, but this notion that all of a sudden people start needing to prove a negative I think flies in the face of our normal legal processes here in Australia.”

Onus of proof

With this comments, the deputy Labor leader revealed she doesn’t understand what the onus of proof is. And she demonstrated her ignorance of the fact that unfortunately Coalition and Labor governments routinely overturn the presumption of innocence.

Reversing the onus of proof in relation to politicians’ citizenship would mean every MP and senator would be disqualified from being in Parliament, unless they proved they were validly elected. No one is suggesting this.

Plibersek’s remark that in Australia “we don’t have a reverse onus of proof” is simply wrong. The Institute of Public Affairs’ annual Legal Rights Audit revealed that Commonwealth government legislation overturns the onus of proof in at least 49 different circumstances. Plibersek is right. In a free country, citizens should be presumed to be innocent – but in Australia, an ever-growing array of laws presume employers are guilty.

Usually it is employers and businesses who must prove their innocence under a variety of industrial and workplace laws.

For example, under section 110 of the Work Health and Safety Act 2011, an employer accused of discriminatory conduct is presumed guilty unless they can prove otherwise. In section 7C of the Sex Discrimination Act 1984, the reversal of the onus of proof is in black and white: “Burden of Proof – In a proceeding under this act, the burden of proving that an act does not constitute discrimination because of section 7B lies in the person who did the act.”

Section 361 of the Rudd government’s so-called Fair Work Act 2009 provides that if an employee alleges an employer has breached the act, the employers is declared guilty “unless the person proves otherwise.”

Maybe when she was talking about how politicians should be presumed to be innocent, what Plibersek really meant to say was that there should be one rule for politicians and another rule for everyone else.

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