The peak body for Queensland lawyers, the Queensland Law Society, has joined the ATA’s call for amendments to the planned national truck laws to restore the principle that defendants are innocent until proven guilty.
Under clauses 576, 578 and 579 of the current draft laws, directors, executive officers, partners and the managers of unincorporated businesses would automatically commit a chain of responsibility offence if their business commits an offence. They would be presumed guilty and would have to prove their innocence.
The clauses are similar to the existing laws in a number of states.
In a media release, the President of the Queensland Law Society, Dr John de Groot, said governments had a responsibility to protect company directors and officers who are innocent of wrongdoing – not just within the trucking industry but in industries throughout Australia.
“Once this step of directors having to prove their innocence in circumstances of corporate fault is taken in one law, it can too easily create a domino effect in other pieces of legislation where it’s mentioned, affecting many industries,” Dr de Groot said.
“It runs completely counter to the well-established principle of criminal law that a person remains innocent until they are proven guilty, without any proof of personal complicity or wrongdoing. Reversal of the onus of the proof is inappropriate, contrary to fundamental tenets of our legal system and unfairly discriminates against corporate officers,” he said.
He said the Queensland Law Society supported the Corporations and Markets Advisory Committee’s proposed model to keep directors and managers fairly accountable, leaving the door open for investigating potential liability.
The committee published the model in 2006 in its report on personal liability for corporate fault. In the report, the committee concluded that reverse onus of proof provisions were objectionable in principle and unfairly discriminated against corporate personnel compared with the way in which other people were treated under the criminal law.
The committee provides the Australian Government with independent advice on issues that arise in corporations and financial markets law and practice.
The ATA has released its own amendments to the clauses based on expert legal advice. Under the ATA’s amendments, the prosecution in chain of responsibility cases would have to prove that:
- a corporate director or officer, business partner, or unincorporated business manager had the capacity to influence the conduct of the organisation in relation to the offence;
- there were reasonable steps the person could have taken to ensure that the organisation complied with the provision in question; and
- the person failed to take those steps.