April's President's Report – Protest Laws
On the state front, the Society is concerned that proposed legislation to address protests (Criminal Code Amendment [Prevention of Lawful Activity] Bill 2015) is too broad and may erode fundamental aspects of our criminal justice system.
In particular, the Society is concerned about the reversal of the onus of proof. As members will be aware, our criminal justice systems operates on the basis of an accused’s right to silence, the belief that a person is innocent until proven guilty and the requirement for guilt to be established beyond reasonable doubt. The effect of the reversal of the onus of proof is to assume that a person has committed an offence and requires them to prove their innocence. This represents a fundamental undermining of the basic tenets of the criminal justice system.
The Society also believes that the criminal offences to be created by the proposed law are too broad. The criminal law should be drafted so that it is clear to the public, police, prosecutors and the courts whether certain conduct is or is not criminal. As presently drafted, we are concerned that the laws would place too much discretion in the hands of the police and prosecutors, which is not fair on them or the public, with the public having to second guess how the police may enforce very broad criminal laws.
The reversal of the onus of proof must be removed and, at the very least, the remainder of the proposed legislation should be referred to a parliamentary committee to review and consider ways to draft the legislation to target the specific ill that the government wishes the legislation to address.