The state of fundamental legal rights in Australia

5 Dec 2014

Executive summary: This report demonstrates that a serious problem exists with respect to fundamental legal rights in Australian law. Our research has focussed on the extent to which four such fundamental legal rights are abrogated in current acts of the federal parliament:

1. The presumption of innocence and burden of proof

2. Natural justice

3. The right to silence

4. Privilege against self-incrimination

In each of these areas we have discovered numerous legislative provisions that remove or undermine these fundamental legal rights.

The mechanism by which the presumption of innocence is upheld in common law legal systems is to place the onus of proof on the party making the legal claim. However, we have discovered 48 provisions that reverse the burden of proof. Such provisions force defendants to prove their own innocence.

Natural justice is a term used to describe a number of important elements of a fair legal proceeding. These include the right to a trial, the right to appeal, the right of the accused to know of the allegations made against him. Our research uncovered 92 laws that eliminate natural justice.

The right to silence protects individuals against whom a claim is being made from being coerced into answering questions or producing documents. We found 14 provisions that remove undermine the right to silence.

We have also found 108 provisions that remove the privilege against self-incrimination.

In total, our research has uncovered 262 provisions that breach fundamental legal rights.

Our analysis also finds that breaching provisions fall more heavily on certain groups. A comparison between company directors and union officials revealed that 48 breaches apply to company directors, and two apply to union officials, with 18 applying to both groups.

This report demonstrates that two things must now occur. First, all current provisions that breach fundamental legal rights must be repealed. A complete audit of Australian legislation, regulations and other statutory instruments should be conducted with a view to removing offensive provisions. Second, legislators of all political stripes must commit to a greater level of respect for the principles of the rule of law and refuse to pass laws that breach our fundamental legal rights.

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