THE LEGAL presumption of innocence is increasingly being challenged by those in public life, according to federal MP Duncan Kerr.
Speaking in the House of Representatives last week, Kerr said he was prompted to voice his concerns following a proposal by a government MP from NSW for legislation that would remove the right to bail for people who might be charged with “particular” offences.
The proposal raised important concerns “for all of us”, he said, and was a “grave situation”.
The reason we have bail provisions, he explained, was to ensure that those charged with serious offences met their obligation to attend court.
Bail was not refused as a form of punishment and was not granted in instances where there was a legitimate fear that someone will not meet their court obligations.
Kerr acknowledged he was speaking to a community that felt “under siege” to a degree, but he said they would betray principles they claimed to be defending if they endorsed a legal system that did not continue to act upon the presumption of innocence.
These principles included civil liberty, the rule of law and all the underlying democratic principles.
Kerr told parliament he had made his “strong remarks” because the community would be guilty of subverting its own principles if it allowed the executive or the police, by executive charge, to hold a person without review by the courts.
There is a great risk of political intervention with regard to offences which give rise to community concern, Kerr said. This is why Australia has the separation of powers — to ensure the responsibility and duty of determining a fair and just outcome rests with the judiciary, and 12 citizens selected randomly, to make judgements on guilt and innocence.
It was not for the executive or the police to make determinations that undermine the fundamental presumption of innocence, Kerr said. “We are dangerously teetering on a course close to that point at the moment.”