Page 679 - Week 03 - Tuesday, 8 March 2005
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This is a live and continuing debate. It is a very important and valuable part of the role the scrutiny of bills committee undertakes. It raises issues for the consideration of members in relation to all legislation with regard to issues such as the legal burden of proof. These days, of course, there is a further role in relation to whether or not provisions that are being introduced by the government are indeed compatible with the Human Rights Act. I think we are all aware that we have had a debate—certainly over the seven years that I have been in this place—in relation to strict liability provisions.
I will just touch on both the issues raised by the shadow attorney and Dr Foskey. They are issues of continuing interest at least, if not of continuing concern. It is the case that, in relation to this bill, there are a number of provisions—or at least in the existing legislation—that have specific defences that require a defendant who wishes to rely on the defence to prove the existence of the circumstances of the defence; that is, that the defendant bears the legal burden of proof.
Imposing the legal burden of proof on the defence does—and Dr Foskey went to this point—on its face present an infringement on the procedural rights of an accused. Indeed, it is relevant that we now note that those procedural rights of the accused are protected by section 22 (1) of the Human Rights Act of 2004. That is a provision within the bill of rights that we have legislated in the ACT. I find it interesting, but I think it is important that we now acknowledge the role that a bill of rights, or the Human Rights Act, has in the discourse or conversation that is occurring within government and within the committees of this place in relation to human rights.
Of course, the government has always insisted that the great strength of our model or version of the bill of rights or the Human Rights Act is the dialogue it creates between arms of government. This is a fantastic example of that model at work—not just at work but working—in that it now forces members of this place, public servants, decision-makers and the minister to have regard, in a most explicit way, for whether or not a particular action has human rights implications.
For myself, in the face of those who continue to argue against a bill of rights, it is a classic but quiet example of the strength and importance of a bill of rights, of a human rights act. Here we are, as a legislature, debating the implications for human rights of a particular provision. Isn’t that a good thing? I insist it is. I think it is one of the great strengths of a bill of rights. It is quiet, it is unassuming, but it is there. Public servants in their work are now forced to ask the question and answer the question. They talk about it, and we as legislators are forced to deal with the issues.
In this particular case with the provisions, it is the government’s assertion—and I believe it is essentially the position of the scrutiny of bills committee, who did not come to a final resolution on the issue but raised it for the consideration of members—that it is arguable, on the basis of international jurisprudence, and I think there was reference to a New Zealand case, that the provisions in relation to the legal burden of proof as applied in the Classification (Publications, Films and Computer Games) (Enforcement) Act fall within permissible limits under section 28 of the Human Rights Act because the purpose of the provisions for protection of children is an important and legitimate objective which will be achieved by the provisions.
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