Friday, February 08, 2013

The adulteration of innocence

After Craig Thomson MP was charged with more than 100 fraud offences, Trade Minister Craig Emerson declared Thomson was entitled to the presumption of innocence.  Emerson repeated what most people assume to be true, namely that in Australia you're innocent until you're proven guilty.

The idea that people should be presumed innocent pervades all walks of life.  To take an example from just a few days ago, in Melbourne as claims were made about drug-taking at the Essendon Football Club, sports journalists were at pains to emphasise officials and players at the club were ''innocent until proven guilty of any allegations''.

The problem with claiming someone is innocent until proven guilty is that the statement isn't accurate.  It all depends.  There are dozens of Commonwealth and state laws declaring people guilty first which then require them to establish their innocence.  The offences under Commonwealth law of which people are automatically assumed to be guilty range from importing illegally logged timber, to arranging sham marriages, to drug trafficking.  And the trend for politicians to do away with the presumption of innocence is increasing.

The Gillard government's draft Human Rights and Anti-Discrimination Bill unveiled at the end of last year proposes that an employer accused, for example, of racial discrimination should be presumed to be guilty.  A few days before her resignation as attorney-general, Nicola Roxon announced she had backed down on that part of the bill which would have made it illegal to insult or offend someone.  However, the sections of the bill which require those charged with discrimination to establish they're not guilty remain.

A new and worrying trend is the way politicians are eroding the presumption of innocence by requiring individuals to prove they have fulfilled obligations of ''due diligence''.  An ever-growing number of laws require individuals to prove they are innocent of an offence by demonstrating that they complied with whatever obligations would be appropriate for someone exercising due diligence.  Many of these due diligence requirements are aimed at company directors.  The requirements of due diligence can be incredibly vague and almost impossible to comply with.

Vague laws give bureaucrats and judges enormous discretion to decide what is appropriate behaviour.  For instance, section 27 of the Work Health and Safety Act 2011 specifies that fulfilling the requirement of due diligence under the legislation includes taking reasonable steps to have ''up to date knowledge of work health and safety matters''.  In this context ''up to date'' could mean nearly anything, and as a result company directors attempting to comply with the law have little or no guidance of what is required of them.

Although in a technical sense the term ''presumption of innocence'' applies only to criminal cases, the principle behind it applies regardless of whether an individual is accused of committing a crime or a civil offence or is a defendant in civil litigation.  The principle is that the person making the accusation has to prove their case.  It is not for those against whom the claim is made to prove their innocence.  There are a host of practical justifications for the presumption of innocence, but ultimately the justification of the principle rests on political philosophy.

A liberal and democratic society can only exist and flourish if it is assumed by its citizens and its government that individuals are more likely to abide by laws than break them.  The consequence of this assumption is therefore that government doesn't need to, and shouldn't, regulate every aspect of human behaviour, and individuals can enjoy any freedom that hasn't been explicitly taken away from them by the government.

The alternative formulation assumes people are more likely to be bad than good and assumes someone is more likely to be guilty than innocent (which is the assumption made whenever the presumption of innocence is abandoned).  These sorts of assumptions produce a legal and political regime that favours control over freedom.  In such a regime the only freedoms that citizens are allowed are those granted to them by government.  This sort of regime bears no resemblance to a liberal democracy.

The Human Rights and Anti-Discrimination Bill is only the most recent and most high-profile instance of politicians attempting to do away with a legal principle that up until recently most people assumed was inviolate.

There's something deeply ironic about a piece of legislation that has ''Human Rights'' in its title which abolishes the right to be presumed innocent.

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