Laws targeting foreign fighters reverse the evidential burden of proof
- The laws that the Counter-Terrorism Legislation Amendment (Foreign Fighters) Acts introduced meant that any citizen returning from a country the government determined was a civil war concern would be assumed, by default, to have been fighting in that war. They would be presumed guilty, and would then have to show evidence of their lack of involvement.
- According to the foreign fighters laws, the government would not need to prove the individual had been fighting in the foreign conflict before acting.Instead, the accused would have to lead evidence first that they had been in the country for some other reason.
- George Brandis argued that the burden of proof had not been reversed because only the evidential onus had been changed.
- The Greens argued that the foreign fighters lawswould apply to humanitarian workers and journalists, who would need to prove each time they returned to Australia that they had not been involved in criminal behaviour.
The Gilbert and Tobin Centre for Public Law wrote to the Australian Law Reform Commission in a public submission on the changes that “[t]he offence does not technically reverse the onus of proof, and it is not an offence of strict or absolute liability. However, it has essentially the same effect, as criminal liability will be prima facie established wherever a person enters or remains in a declared area [such as a foreign conflict zone].”
The Australian Lawyers for Human Rights wrote to the Australian Law Reform Commission in a submission on the changes that the effect of the law was “clearly to place the burden of proving their innocence upon the defendant.”
The Human Rights Committee pointed out that “in addition to proving that they entered into or remained in the declared area solely for one of the prescribed legitimate purposes, they would also need to provide factual evidence that they did not enter into or remain in the declared area […] in part for an illegitimate purpose.”
