Company directors lose out in attack on legal rights

Fundamental legal rights in Australia have been eroded by successive governments of every political stripe.

This is the concerning story told by new research, which has uncovered 262 provisions that reverse the burden of proof or abrogate the right to silence, privilege against self-incrimination and the basic principles of natural justice.

But our analysis reveals an even more troubling issue:  that specific groups have been singled out for discriminatory treatment.  A comparison between companies and their directors and agents, and unions and their officers and agents showed dramatically differential treatment.

No less than 48 provisions remove the legal rights of company directors, while just three remove the rights of union officials.  Eighteen legal rights breaches apply to both groups.

The odds are stacked so heavily against company directors that one wonders why anyone would choose to be one in 2014.

In many cases, the right to silence is removed and company directors are held to be vicariously liable for the conduct of company employees.

For example, section 1316A of the Corporations Act 2001 provides that a corporation is not excused from providing information even where that information may tend to incriminate the corporation.  Under section 769B of the Corporations Act 2001, a company director may be held liable for the conduct of company employees.

This is an appalling state of affairs for a country whose legal system is ostensibly based on the rule of law.

One of the reasons for the uneven treatment of company directors is that areas of law that affect them are affected most heavily.

Laws in the areas of tax, finance, trade, commerce, employment, and the environment have become special targets for the erosion of legal rights.  There are 33 breaches in tax and finance law, compared with just six in the area of government and administration.

The raw numbers are appalling.

We've discovered 48 provisions that reverse the burden of proof.  These laws overturn the idea that a defendant is innocent until proven guilty.  The idea that the burden of proving a case is placed on the party bringing a claim to the court is as old as our English common law system.  For hundreds of years this has been a key protection of liberty.

Provisions that reverse the onus of proof hold defendants to difficult — sometimes impossible — standards in order to demonstrate they are not in the wrong.

There are also 92 laws that place limits on natural justice.  These laws remove basic legal rights to a fair hearing, to an unbiased judge and to appeal.  They are a violation of the separation of powers.

The legislature cannot dictate the role of the judicature, one important aspect of which is to apply the law created by the parliament.

There are 122 laws that remove the right to silence and the privilege against self-incrimination.  Perhaps the most rudimentary legal right of all is the right to silence.  Over hundreds of years, the common law has protected the right of defendants to remain silent, especially in the name of self-preservation.  Parliament should never seek to remove it.

Australia does not have extensive constitutional protections for legal rights such as those that exist in other countries.  The United States Constitution, for example, provides explicit protection for several legal rights, particularly in the case of criminal investigations and trials.

In Australia it's largely left to the parliament to defend our legal rights and safeguard our liberty.  This is not cause for despair, however — quite the opposite.  This provides the parliament with a significant opportunity.

The Abbott government must launch an ambitious reform agenda in this area.  The parlous state of fundamental legal rights presents Attorney-General George Brandis with an issue where he can make his name.  And the groundwork has already been laid.

The Australian Law Reform Commission's Freedoms Inquiry is a good start.  If Brandis is successful in making significant gains he will be one of the great reforming attorneys-general.  My research shows him the way.