Australian governments are changing how the rule of law works. It used to guide society, but is now being turned into a weapon to beat citizens into submission.
Govts turn law into a weapon
By Kevin Boers*
Governments of both persuasions are stealthily changing the nature of the law. And society.
We expect the law to regulate relationships between individuals, and between individuals and the government. However, the law we live under is being transformed into a weapon to be used against us, as a method of control lest we demand our rights as human beings.
Changes in law are made in the name of “safety”, “efficiency” and/or “fairness”. And we all want to be safer, we are all for more efficiency and we all want fairness.
But the changes under way do nothing to improve these things. What they are very efficient at doing is giving more power to governments. They are put to us under the guise of “reform”.
In our world of continuous change, reform is a mantra for all that is good and positive. This then makes it difficult to argue against “reform”, and makes you appear to be objectionable if you do argue against it.
Notable recent legislative changes are drugs and weapons searches in public places without warrants or reasonable suspicion, Protective Service Officers at train stations and privacy amendments allowing internet usage to be tracked.
And so it continues. The Victorian Government has introduced into Parliament the Criminal Organisations Control and Other Acts Amendment Bill. This bill aims to change:
- the Confiscation Act to remove the onus on the state to prove you’re your property was acquired as a result of the proceeds of a crime/s and to allow goods and property, except for a minimum standard, to be confiscated once someone is found guilty of a “serious drug offence” (in other words, you are guilty unless you can prove you and your goods are innocent);
- the Criminal Organisations Control Act to broaden the range of offences that are captured by the Act, and to reduce the proof burden from the criminal standard to the civil one except where an organisation is to be banned from operating (in other words, its easier for police and bureaucrats to boost their conviction rate) ; and
- the Criminal Procedure Act to require the defendant to seek leave if they wish to cross examine any witness, that is able to be cross examined, who gives evidence in a committal hearing (currently if the witness consents then leave is not required). This makes it tougher to defend yourself.
To discuss the implications of all the changes would require a tome: I will only be discussing the first change in this article.
The first amendment removes the onus on the State to prove that the assets were acquired as a result of the proceeds of crime. If passed (and there is no reason to suppose it will not pass, given the Tweedledummer stance of both major partyies on crime), the State now only needs to obtain a conviction for a serious drug offence and can then confiscate the convicted person’s assets which exceed a minimum amount (a car to a certain value, household goods and tools of trade).
The government has access to more resources than citizens do. This is why English law, on which Australian law is based, has placed the burden of proof on governments. We entrust governments with great power over us, and the burden on the State to prove guilt is a check and balance to control the Government’s use of that power.
Not concerned that people committing serious drug offences can have their assets seized by the State? Perhaps you think this is a way for the State to cover the cost of prosecuting serious drug offenders, and making our community safer and you go on your way thinking this will never impact on you or yours.
However, before you do go on your way, there are a few things to think about.
There is a concern that prosecutors under pressure to manage an ever-increasing workload with the same resources will use these powers to coerce plea bargains and ‘agreed’ confiscation orders. The prosecutor already holds the whip hand in the criminal law process. Multiple and more serious charges are a commonly-used tactic to influence defendant behaviour and push a defendant towards a quick plea on lesser charges, rather than chance the chaotic roll of the dice that has become our criminal courts.
There is anecdotal evidence that magistrates are nominally allocating indicative sentences to defendants before guilt is even decided. If that is happening, with most of the defendant’s assets at risk, the defendant has a more difficult decision in terms of defending a charge, whether they have a defence or not. It is now not just his/her liberty but also their financial security – and that of their family – that is at risk. It is not hard to imagine someone innocent of the charges electing to take a plea bargain and an “agreed” forfeiture order in order to avoid the possibility of a larger sentence and a larger or virtually total confiscation of assets.
Still you think this does not apply to you or your loved ones?
Well, maybe not today but what if the legislation is widened from time to time, from serious drug charges, to serious theft, and then other matters which cost the taxpayers money…like graffiti, vandalism, traffic fines, drink driving?
Where would you say the line should be drawn? How many of the protections that our current legal system affords us (for which there are good historic reasons for their existence) need to be removed before you consider that it is time to protest?
Or do we stand and say, as we always have, the legal system is blind, it is objective, it is evidence-based and the burden is on the State to prove wrongdoing. Are we really ready to let go of that proposition and throw our vulnerable and marginalised community members into a life of guaranteed penury as any meagre asset they manage to acquire in any attempt to have a different life will be gobbled up by the State at every opportunity, every slip of rehabilitation, every minor stumble along the path to becoming a stronger, healthier person.
Our community is at grave risk. Our government is making laws they have no business making, and we need to be a voice of protection for those more vulnerable than ourselves. And in doing so protect ourselves in the process.
Kevin Boers, who works in the public service, is a member of Civil Liberties Australia.