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Presumption of innocence not absolute

By Mirko Bagaric - posted Monday, 14 May 2012

Federal MP Craig Thomson is no more entitled to the presumption of innocence than any one of the 6,766 Australians who are currently languishing in jail because their application for bail pending trial has been rejected.

Not one of the remand prisoners has been proven guilty of their alleged offence, yet all are now in custody stripped of much that is meaningful in life. Their right to the presumption of innocence did not guard them against being deprived of an important interest. Nor should it in relation to Mr Thomson – and a glib allegation that he was 'set up' does not change that.

It is breathtakingly simplistic and doctrinally mistaken for Prime Minister Gillard to insist that the right to be presumed innocent justifies Mr Thompson continuing to grace Australian Parliament.


No right is absolute. Even the right to life is limited by the right to self-defence. To invoke a right is never a conversation stopper. This is especially the case in relation to procedural protections such as the right to be presumed innocent.

The presumption of innocence is routinely trumped by the greater good in the form of protecting the community from suspected criminals. Hence people accused of serious crime are often jailed pending trial where there is a risk of flight or reoffending– especially when the prosecution case is strong. The presumption is also regularly negated by reverse onus provisions in criminal statutes which place the onus on accused persons to prove their innocence, even in relation to very serious crimes such as possession of drugs.

No individual can invoke the right to be presumed innocent as an absolute protection against adverse consequences. The application of the right is subject to competing imperatives.

Parliament is the most powerful and coveted institution in the country. The character of its members must be beyond reproach. The people in parliament should be exemplars of the citizenry.

It is indecent that a person would use other people's (union members') money to have sex with prostitutes. Moreover, the evidence against Thompson in the Fair Work report raises a prima facie case against him. An employer would be justified in summarily dismissing an employer on the basis of the findings in the Fair Work report. The Prime Minister is morally obliged to do the right thing and not continue to rely on Thomson's backing to prop up her interests.

The continued presence and active participation of Mr Thomson in the affairs of the highest institution in the country is a stain on the institution. It diminishes the standing of all those in Parliament who support him. It diminishes the fabric of national identity.


The rest of the world groaned at the antics of former Italian Prime Minister Silvio Berlusconi, now they are bemused at the character vacuum that is the Australian House of Representatives.

The suggestion that Thomson should be allowed to remain in Parliament because the allegations against him are civil, not criminal in nature is misguided. The distinction between a civil wrong and a crime is often nothing other than a mere technicality. There is no principled basis for distinguishing conduct which is a civil and criminal wrong. Many trivial acts, such as walking against the traffic lights are classified as crimes, while many harmful acts, such insolvent trading are civil in nature.

In the end, Thomson is accused of using the hard earned money of union members to have sex with prostitutes. The gravity of the allegation is informed by nature of the position now occupied by Thomson.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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