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NEWS

Proposed pre-trial detention reforms threaten presumption of innocence in Australia

editor - August 27, 2014

 

//en.wikipedia.org/wiki/File:Flag_of_Australia.svg#/media/File:Flag_of_Australia.svgDaniel Matas is a solicitor and clinical teacher at the University of Newcastle Legal Centre. In this guest post originally published in The Newcastle Herald, Daniel explores proposed reforms to pre-trial detention in New South Wales which may undermine the presumption of innocence.

The presumption of innocence has long been described as the ‘‘golden thread’’ running through our criminal justice system. Its importance cannot be overstated as it underpins a number of fundamental legal rights and procedures. At its most basic level, it operates on an accepted understanding that a defendant remains innocent until such time as their guilt is proven beyond reasonable doubt. The New South Wales Government's more recent announcement to accept changes to the Bail Act recommended by former state attorney-general John Hatzistergos represents a significant watering down of the presumption.

Under the proposed reforms, in addition to reference to the presumption being removed from the main body of the act, an accused charged with a serious offence will now be required to ‘‘show cause’’ as to why he or she should be granted bail. This reversal of onus is in direct violation of the presumption of innocence.

Over the years, much criticism has been made of New South Wales' bail laws. On one view, bail laws in this state have for many years operated in direct conflict with the presumption of innocence.

Placing a defendant in custody pending trial to prevent them committing further offences not only presupposes that the detained person is guilty of the present charge, but also unfairly deprives them of their liberty on the mere suspicion that they might intend to commit a crime if released. This form of pre-trial preventative detention punishes those detained for offences neither attempted nor contemplated.

In a similar vein, the further requirement to now take into account the safety concerns of victims or their families appears dangerously premised on an acceptance of a victim’s or family’s opinion as to the guilt of an accused when, in reality, they are yet to be proven guilty of anything.

Of course logic dictates that, in certain circumstances, the presumption of innocence must give way to accommodate the public’s right to feel safe and protected. The obvious example is a situation where the prosecution case against a bail applicant involving a serious offence is particularly strong. However this is a safeguard that has long been a feature of this state’s bail laws.

Unfortunately, the decision to now again change bail laws in New South Wales, less than three months after the current law came into existence, appears to have as its driving force media panic regarding two recent high-profile bail cases rather than any hard evidence suggesting that the current risk assessment approach to bail poses a greater threat to the safety of the community. The government has justified the proposed changes by highlighting the community’s interest and right to feel safe and protected. However the ever-gradual erosion of the presumption of innocence and embrace of measures that unnecessarily restrict one’s general entitlement to be at liberty should be of equal concern to the interest and long-term protection of the community.

These principles, said to be enshrined at the centre of our criminal justice system, are at risk of one day becoming ‘‘toothless tigers’’ commanding no more than token acknowledgement. It is a mistake to assume that the rights of an accused person are in direct opposition to the rights of the community at large. They are not rights that exist to serve and protect the interests of the detained individual alone. For this reason, the ever progressive fraying of the golden thread through knee-jerk legislative reform should be of collective interest and concern to us all.

This is a guest post written by Daniel Matas, a solicitor and clinical teacher at the University of Newcastle Legal Centre, and may not reflect the views of Fair Trials International. For regular updates follow Fair Trials on Twitter or sign-up to our monthly bulletin at the bottom of the page.  

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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