Law and Lawyer Blog

Unless you have been living under a rock, you would be well acquainted with the saga of Australian Labor MP Craig Thomson, whom Fair Work Australia has recently found to have misused his Union credit cards to pay for the services of prostitutes, amongst other misuses of union funds.

In the Australian legal system, people are supposed to be presumed innocent until proven guilty, however the evidence against Mr Thomson is by most standards overwhelming. Fair Work Australia has found a striking coincidence between the use of the credit cards in Mr Thomson’s possession, at least one signature on the brothel credit card dockets, phone calls between Mr Thomson and the brothel, and a number of other highly suspect pieces of evidence that in my opinion would be highly unlikely to lead to any other conclusion, other than that Mr Thomson himself actively sought and paid for these services, with union funds.

In Mr Thomson’s defence, he has strenuously denied these accusations, and has indicated that he will soon make a lengthy statement in Parliament, presumably explaining how these co-incidences occurred. From what he has recently stated, it seems that he will claim that he was set up by another union official.

As implausible as this sounds to me, our system functions along the basis of presumed innocence, and that being the case Mr Thomson should be allowed to continue in his work, unless he is found to have misused these funds in a Court of Law.

A recent article by Ingrid Epstein highlighted the enormous damage that can befall innocent people when the system manoeuvres around a strict implementation of the principle of presumed innocence. The article, ‘Where the Innocent are as Guilty as the Guilty’ underscored this point by reference to another MP, Andrew Theophanous, and how accusations that were ultimately found to be false and malicious in intent destroyed Mr Theophanous’ career, derailing a glittering career in Victorian politics that many believed would one day have propelled Mr  Theophanous to the Premier-ship of Victoria.

But alas that was not to be, in part because the system did not allow the accusations to be properly tested in Court, over-reacting to mear allegations that even saw Mr Theophanous jailed for a short time.

However, and it is a big however, the reality is that in Australia, there are even bigger exceptions to the principle of a presumption of innocence.
We know how the system is supposed to act, but in real life, it seems this presumption of innocence gets distributed between the HAVES and the HAVE NOTS.

According to Prime Minister Julia Gillard, politicians SHOULD HAVE a presumption of innocence, even if the facts of their guilt are overwhelming. As such she has steadfastly defended Mr Thomson, claiming that she thought he was innocent and that she would not expel him from the party. In response to media pressure and the prevailing community belief that the evidence stands on its own, she finally relented and expelled him from the Labor party, while still claiming he was innocent, and still accepting his vote in Parliament. The thinking behind this is obvious, as Gillard is acting in her own self interest, forget the ethics at play. But any way you play it, Mr Thomson has received remarkable leniency in this sorry saga, even having his legal fees in defence of these allegations paid for by the Labor party.

However, as many Australian fathers would be well aware by now, Julia Gillard is quite selective as to how she applies the principle of a presumption of innocence.

As in abundantly clear from Gillard’s recent Family Violence amendments to the Family Law act, she believes that even though Craig Thomson should be presumed innocent, should keep his job and should receive hundreds of thousands of dollars in free legal funds to fight his case in Court , separated fathers however do not get such privileges, and in fact should be considered the ‘HAVE NOTS’ in application of the principle of a presumption of innocence.

Not only do separated fathers lose their house, the majority of their life insurance and all other assets, but in most cases, as presumably intended by these amendments, they lose meaningful contact with their children, even if they are completely innocent of any wrongdoing. They are also in many cases prevented from accessing Legal Aid, and certainly never get their legal fees paid for by an organisation for apparently no reason.

The recent Labor initiated amendments to the Family Law act have created a two-tiered legal system where presumed guilt or innocence is handed out by gender, and in fact these amendments create a presumption of guilt against separated fathers, and a presumption of truth for separated mothers.

These family law amendments have removed s117AB, the provision that provided for a modest financial penalty against those who have been proved to have  made knowingly false allegations (presumably because of the belief that mostly women make false allegations). Even blind-freddy would accept that this would lead to more false and malicious allegations, especially of family violence and child abuse, given that perjury is now effectively enshrined in law as not only not-illegal, but justified, when it comes to family law matters.

These amendments have also lowered the standard of proof required to prove family violence to such a degree that even an ‘irrational fear or belief’ about an event that never occurred, can be considered to be a form of family violence. No, I am not exaggerating, an irrational fear or belief can be all it takes, and a father could be deemed to be an abuser, and separated from any contact with his children.

It can be strongly argued that the overall intent of these Family Law amendments has been to create a presumption of guilt against separated fathers, and just as importantly, to deny separated father the right to defend themselves against such a presumption, because disputing allegations with concrete facts would often be a pointless exercise when the allegations are subjective and imaginary.

Now this does not sound like a foundation for the creation of a presumption of innocence to me.

So you would have to forgive me when I cringe every time I hear Julia Gillard talk about every Australian’s right to a presumption of innocence, because the truth is that this presumption only exists for the benefit of the privileged. It most certainly does not exist for the average Australian male.

And the recent statement by Independent MP Tony Windsor on his support of Craig Thomson only adds salt to the injury afflicted by most separated fathers in this country.

Windsor said, ‘Every Australian has rights that include a presumption of innocence until proven guilty.’

Well, where was this principle when we argued the exact same point to Mr Windsor, hoping that he would vote against the Family Violence amendment to the Family Law act in November 2011

Where was this principled stand when Mr Windsor, contrary to the commitments he made previously, gave the deciding vote to pass the Family Violence bill, a bill that creates a presumption of guilt against separated fathers

I guess like Julia Gillard, when Tony Windsor says ‘every Australian’, he really means the HAVES, because the average separated Australian father in this country has no such rights, thanks to people like Julia Gillard and Tony Windsor.

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