Chief Justice Tom Bathurst warns of threat to basic legal rights
February 5, 2016
NSW Chief Justice Tom Bathurst says mechanisms for scrutinising proposed laws may be inadequate. Photo: Tamara Dean
The state’s top judge has warned that fundamental legal rights including the presumption of innocence risk being eroded in NSW because existing means of reviewing legislation are inadequate.
In a speech to mark the beginning of the law term on Thursday night, Chief Justice Tom Bathurst said it was “questionable” whether mechanisms for scrutinising bills in the state were “translating into an effective protection of fundamental common law rights”.
He conducted a review of state legislation and concluded that, on a conservative estimate, there were “at least 397 legislative encroachments” on three basic common law rights, including the privilege against self-incrimination and presumption of innocence.
NSW had “no equivalent to the Australian Human Rights Commission, or a counterpart to the Victorian Equal Opportunity and Human Rights Commission”, he said.
“Admittedly, international human rights obligations bind the states as much as the Commonwealth,” Chief Justice Bathurst said.
“Nonetheless, it would appear that the only other scrutiny review mechanism in this state, beyond the [parliamentary] Legislation Review Committee, is the NSW Law Reform Commission.”
He said there were 52 provisions in NSW which encroached on the presumption of innocence, ranging from “reversing or altering the onus of proof [on the prosecution] for an element of an offence, to removing the presumption of innocence for an entire offence altogether”.
As a “particularly extreme example”, he noted that section 685 of the Local Government Act provides that an allegation of a particular offence, including that a person has not obtained a council approval, is “sufficient proof of the matter so alleged, unless the defendant proves to the contrary”.
“Thus the section renders someone guilty of a criminal offence by a mere accusation,” he said.
He also singled out the state’s whistleblower protection laws, the Public Interest Disclosures Act, which make it an offence attracting a prison term of up to two years for someone to take “detrimental action” against a whistleblower substantially as a reprisal for them speaking out.
The laws presume the motivation for taking “detrimental action” was reprisal and the defendant must disprove it.
Former State Emergency Service commissioner Murray Kear is the first person in NSW to face trial under the new laws.
“It may be very easy to pass over these less well-known shifts of burden [of proof] as of no great import,” Chief Justice Bathurst said.
“However, what may seem like subtle shifts in insignificant acts, can have dramatic consequences for individuals and their families. In essence, the effect of any alteration to the presumption of innocence should never be made light of or under-estimated.”
The top judge also took aim at parliamentary drafting, saying there were “a lot of inconsistencies about how encroachments and protections are framed”.
This detracted from the transparency of encroachments, he said.
NSW Law Society president Gary Ulman, a partner at law firm Minter Ellison, said in a separate speech the society would fight for “adequacy and consistency in funding for legal assistance programs, the courts and tribunals” in the year ahead.
He said judicial resourcing in the Family and Federal Circuit courts in particular were at “crisis point” and “vulnerable families are left in the balance”.