Magazine article Review - Institute of Public Affairs

Chipping Away at Freedom

Magazine article Review - Institute of Public Affairs

Chipping Away at Freedom

Article excerpt

Every law that takes away legal rights is another crack in the shield that protects our freedom, writes Simon Breheny

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. …

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