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Posted by wmmbb in Australian Politics, Human Rights.

A charter of rights was battered by the rhetoric of critics, most notably in NSW, yet if Richard Ackland is be believed it has just demonstrated it worth in Victoria. So federalism might have for once proved it worth.

In the Sydney Morning Herald, in his regular Friday column Richard Ackland writes:

Vera Momcilovic, aged 40 or thereabouts, is a Melbourne lawyer who lived occasionally with a trafficker of amphetamines. Before this, she had never been in trouble with the law. She was convicted of one count of drug trafficking and sentenced.

She owned the apartment where the drugs were found by the police but she claimed she did not know they were there. Too bad. The relevant legislation, the Drugs Act, has a section deeming the person who owns drug-infested premises to be in ”possession” of them. Further, it reverses the onus of proof so property owners in these cases have to prove their innocence.

The presumption of innocence just vanished.

On the other hand, the Charter of Rights and Responsibilities says people have a right to be ”presumed innocent until proven guilty according to law”.

For some time, lawyers and others have been waiting for a suitable reversed-onus case to come along. The tension between the charter and the act was aching to be tested up the judicial food chain.

That is precisely what Momcilovic did. She went to the Court of Appeal, which found the Drugs Act provision incompatible with the human right to a presumption of innocence.

The reasoning was careful, no declamations or crashing of cymbals.

Three principles emerged from the judgment. The court’s job is to interpret the law, not to change it. Second, if legislation does infringe human rights that infringement has to be justified by persuasive evidence. Finally, where it cannot be justified a declaration of inconsistent interpretation should be granted by the court.

This approach is not the same as that adopted by the House of Lords (now replaced by the Supreme Court as Britain’s highest court) which found the human rights legislation there created a ”special rule” of statutory interpretation.

The declaration of incompatibility is central to the ”dialogue” model under the Victorian human rights legislation. This is the same model put forward for all Australians by the Brennan national human rights consultation.

The offending provision in the Drugs Act is now remitted to the Attorney-General for a response.

The Attorney-General now has to produce the evidence and precedents that denial of the presumption of evidence in this legislation is in the public interest. The process was designed by the Victorian politicians. As Richard Ackland says, if the sky does not fall, or short of that, things go on not simply in the same way but one in which the outcomes are decidedly better, the case against a Charter of Rights has fallen to ground.

Imagine that, one of our parliaments, that carefully and comprehensively balance interests, perhaps especially the public interest just vanished the presumption of innocence, and nobody noticed in the legislative process – legislative drafters, special interest groups and least of all people supposedly elected to represent the people. Such a thing could not happen more than once, so it must be an exception.

Of course, the NSW Parliament is exemplary, especially under the present administration, when all planning powers have to concentrated in the office on one person. Otherwise we would have 140 different directions – if that were possible. And the wrong decisions would be made. There would be financial implications for certain political parties and their operatives.

The authoritarian incompetents who run NSW have never heard of community or deliberative democracy, and it is just as well there are ground swells elsewhere, such as in Britain and in Victoria. Richard Ackland is perhaps less harsh in his judgment:

It’s not as though the clots from the NSW Parliament who appear on our telly screens are the font of all wisdom. They could well do with a bit of dialogue with the courts.

After all, they are in constant secret dialogue with their unelected mates from the lobbying industry – property developers, pub owners and other special pleaders. Why not a few judges in the open?

In such a case, the presumption in the model of representative democracy, ossified into a two party system, is that the alternative party might provide a different quality of government and public policy. Hope springs once more, but experience would suggests the first careless rapture is of fleeting duration. The windows close before the blinds open.




[…] least those in the majority party, have decided that Australia should not have a Charter of Rights, unlike Victoria or the ACT. Or have they? Were they simply told what to think? We have no record of this proposal […]

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