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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2786 ..

MR KAINE (continuing):

prove guilt, but the person who is alleged to have committed a crime has to prove their innocence. It does not matter whether it is murder, burglary or passing a valueless cheque. The presumption always is that you are guilty and you have got to prove that you are not.

I cannot think of any more perverse law than that, and this is a typical example of trying to pervert the law. There used to be a presumption of innocence unless you were proven guilty. I do not where that went to, and I cannot understand why the government would put forward the proposition in connection with this issue that you are automatically assumed to be guilty unless you can prove you are innocent. It seems to me to be a total reversal.

The Attorney-General, in responding to comments of the scrutiny of bills committee on this particular point, made it quite clear. He says that the intention of the provision is to confer a legal onus on the defendant. Why? Mr Attorney, it is an easy statement to make, but you have not justified it. You have not justified your tendency to reverse the onus of proof.

It seems to me that some members of this place are inconsistent. It is only an hour or so ago that we were looking at a provision about fingerprinting or photographing all 16 or 17-year-olds on the off-chance that you might catch one who had committed a previous offence. The Assembly rejected that proposition, but to me this is identical. That one assumed some form of guilt; therefore, it justified the police officer taking that course of action. It is no different in principle to what is being proposed here.

It is beginning to permeate the law: you are automatically guilty unless you can prove your innocence. I am surprised that the other one got through, but it looks like this one will not because Mr Osborne has picked up the flaw in it. I support what Mr Stanhope is proposing.

MR RUGENDYKE (11.19): I am aware that there is a need for a provision to deal with valueless cheques. I know of a business in Belconnen that has had about 60 cheques that are valueless. The police find great difficulty in proving dishonesty, so a specific offence for valueless cheques is important. Mr Kaine has convinced me that it is wise to support Mr Stanhope's amendment because the reversal of the onus in this case is over the top, and I agree.

MS TUCKER (11.20): The Greens are also supporting this amendment. Mr Stanhope addressed the issue in some detail at the in-principle stage. The Commonwealth Criminal Code covers the issue of fraud comprehensively and directly. I do not see how the government has made the case that the only feasible strategy to deal with people writing out valueless cheques is to reverse the onus of proof.

In a perfect world, where the law will only pursue people who are trying to get away with something and then get them to prove they were not, it might seem like a good approach. For countless people whose relationship with the law, with government, with institutions and with society is tenuous or uncomfortable, whose economic survival is tenuous and whose belief in themselves is at best variable, a law which makes it a criminal offence to bounce a cheque is confirmation that we do not have their interests at heart.

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