Australia loves to sign up to international treaties. It strikes me though that the treaties that TAKE our rights are honoured, the treaties that PROVIDE our rights are ignored. So let's talk about an Australian's rights under the law regarding the presumption of innocence and the right to a fair trial. Could there be a more basic concept to discuss? Australia is a signatory to the International Covenant on Human Rights 1983 that theoretically provides us with rights to due process and a fair trial. Except we never got those rights.

Here is the relevant section of the Covenant

This Covenant was implemented in Australia with the passing of the Australian Law Reform Commission Act 1996. It was however not implemented in full, some rights that The Establishment thought would give us too much power were ommitted.

Offences of Strict Liability

Strict Liability offences now routinely appear in new legislation coming before Federal Parliament. Wikipedia definition is as follows:

Strict liability is the imposition of liability on a party without a finding of fault (such as negligence or intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous.

Note it says "inherently dangerous". I was reading the enabling legislation for Australia's Medical Cannabis system and strict liability offences are all the way through. These include large fines (over $1000) for things like failing to submit paperwork on time. How is that "inherently dangerous" you ask, well clearly it is not. What is going on here is administrative power creep. The public service is telling We The People to shut up and do what you are told. This may be necessary in important matters of safety, but these days every piece on new legislation is full of strict and absolute liability offences for any breach of the regulations. 

What happened to our right to trial and to appeal?

Is Strict Liability legal? NO Strict Liability is in clear conflict with section 14 of the Covenant (full wording above):

"Everyone charged with a criminal offence shall have the right to be presumed innocent {and shall have a right to} adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing {and} To be tried without undue delay {and} Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law 

By moving the appeal against an administrative fine from the Court system to the Admininistrative appeals system, Australians have been denied a right afforded by this treaty. I understand why the Government has done this, because fine revenue is now so important to Governments that fines have become the new taxation. Moreso debt slavery is a great way to keep the population under control. By allowing people to question the myriad of fines Australians navigate every day the Courts would be banked back for years. So we lose our rights because giving billions of dollars to wealthy public schools and waging billion dollar bankster wars on the other side of the world are more important than people having access to a fair and just legal system.

Equality of Arms

Equality of Arms is shorthand for a principle included in the first paragraph of Section 14 above. The name was created in Europe following their ratification of the Covenant and enshrined in legislation there. The principle means that a Court must have mind that the law cannot be abused by one side outspending an opponent who may not have the means to match them. In that case a subsidy or as we call it, legal aid should be provided to the weak party to ensure they receive a fair hearing. We have introduced Legal Aid in criminal cases, but not as the Covenant required, in civil cases.

This is a major loophole being exploited by the banks and probably why this section of the Covenant was ignored here, we know who runs Australia and it is not We The People. Our banksters act in the most heinous manner and if you don't like it "then sue us". Except of course if you do then you will be up against QCs who know how to use lawfare to ensure your case does not even get heard, let alone won.

But we do have Legal Aid

Legal Aid in NSW is theoretically available for a citizen to fight a large corporation. Except here is the criteria that person must pass for approval:

You will note the catch in the last line: "The applicant must show that the public interest would be advanced." That simply means egregous theft, fraud and assorted bastardry by the corporate sector and from time to time Governments are not eligible for Legal Aid - essentially just the first case is, If the case is not breaking new ground then you are on your own against a monster corporation. That was not what the Covenant said, and it is not how the European Union has interpreted the Covenant.

Australian Law Reform Commission agrees

7.72 The ALRC does not support the new tort imposing strict liability. Strict liability leads to liability regardless of fault. If the cause of action were one of strict liability, then the defendant would be held liable even though they were not at fault, that is, the defendant’s actions were not intentional, reckless or negligent.

High Court Has never directly authorised Strict Liability

The only case of Strict Liability to make it to the High Court was a drug importation case of He Kaw Teh, found with 2.7kg of heroin in his possession. His defence was that he was unaware of the presence of the drugs, which had been planted. The lower Court found that did not mater, this was an offence of strict liability. On appeal the High Court overturned the conviction. They found that the Prosecution must still prove mens rea, a common law principle meaning guilty mind. In this case mens rea meant that if he did not know the drugs were there then he could not have formed the mens rea necessary to be convicted of such a serious offence.

Mens rea does not need to be proven in every case, it depends on the seriousness of the infraction and the intention of the legislation. So Strict Liability offences can meet the mens rea obligation if they are minor. That may seem a victory for the public service, but the point remains the High Court has never dealt with the conflict between Strict Liability (and the accompanying transfer of fines from the criminal to administrative jurisdictions) and our obligations under the International Covenant on Human Rights. 

Conclusion

We need to revisit the Australian Law Reform Commission Act 1996 and our system of Legal Aid to correctly implement the International Covenant on Human Rights. The intent would be to ensure Corporate Australia can be held to account for their crimes in a Court of Law. We have to take lawfare off the table and if that costs money then perhaps the Courts can self-fund by awarding damages & redress to the wronged citizen and award punitive damages against the corporation that is paid to the Government. 

We also need to ensure that all criminal penalties are a criminal matter, not an administrative one.

References

Legal Definition of Equality of Arms

Michael Sanderson article on Equality of Arms and banking

Australian Law Reform Commission Act 1996

ALRC Strict Liability

He Kaw Teh case