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Planned change to criminal code reverses the onus of proof

A protest at Barrabup protest. Picture: Kim Redman

The Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 contains two sections which criminalise those who physically oppose or threaten to physically oppose or protest against activities sanctioned by law.

The really worrying thing about the proposed legislation is the way in which the path to guilt is framed: a presumption of the criminal intention from circumstances giving reasonable grounds for the suspicion of such an intention unless the contrary is not proved.

Not only is this the clearest possible reversal of the onus of proof, it implicitly but obviously has the effect of curtailing the right to silence. How could an accused person prove what was actually in their mind without giving evidence of it?

One of the cornerstones of the criminal justice system in Australia is the concept that it is for an accuser to prove their allegations beyond reasonable doubt and that an accused does not legally have to prove their innocence. It’s an ancient principle entirely consistent with fairness and common sense.

By way of example, imagine you were accused of an offence years ago and an eyewitness says he saw you committing the crime. Given the passage of time you have no evidence of where you were, no diary entries and no alibi witnesses. The witness may have a secret and dishonest agenda or be honest but mistaken. Merely challenging the witness on detail and honesty would be insufficient if you had to prove your innocence. Think of the consequences then — secret grievances and resentments could be settled in the courts merely by making an accusation against an individual.

Transfer such an idea into the realm of big business and environmental protest — the proposed legislation and the reversal of the burden of proof would have the effect of criminalising any sort of protest on or near a site. It would be the perfect solution for hassle-free commercial and industrial activity but the end of society’s right to object.

The legislation does not simply catch those physically doing anything but anyone within a given area (who might after all be reasonably suspected of intending to do something unless they can prove they had no such intention). Be careful where you choose to walk the dog. Or what you do with your mobile phone or dog lead which could be “things” for use in your intended purpose.

Protesters are often idealists prepared to physically and emotionally stand up for what really matters in our society, exercising their right to peacefully object to corporate exploitation by the few at the expense of the many.

This doesn’t mean I want to throw up my arms and become a tree hugger but it does mean that protest should be permitted and respected. The inevitable consequence of the amendments in question is the targeting and prevention of any such protest.

Parliament is being asked to cast laws in a wide and subjective and imprecise net at the expense of natural justice and the rights of the individual socially and legally. To coin an obvious cliche, if this legislation is permitted it will be the thin end of the wedge into the incremental erosion of such rights generally.

After 20 years of representing the innocent and guilty (as found) charged with every imaginable crime, I am convinced of the need for an accuser to be required to prove an allegation and for such an allegation to be carefully tested in a court of law.

The logical alternative as framed in the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 could only lead to injustice and a situation analogous to Arthur Miller’s The Crucible where society was terrorised by baseless allegations incapable of disproof.

WA depends economically almost entirely upon the exploitation of natural resources but should this permit legislation outlawing democratic opposition and peaceful freedom of expression? The answer is obvious but if we don’t shout it out now it may be gone for ever. We educate our children to think and question and oppose injustice — how then can we endorse the loss of such fundamental rights?

Anthony Eyers is president of the Criminal Lawyers Association of WA