Law Society objects to onus of proof reversal

Proposed changes to Queensland’s Transport Operations Act on dangerous good carriage queried

Law Society objects to onus of proof reversal
The Law Society has raised issues with a Queensland Parliamentary committee

The Queensland Law Society has raised worries about about reversal of the onus on proof in proposed dangerous goods carriage reforms.

The State Government proposes a change the Transport Operations (Road Use Management) Act 1995 to prohibit the carriage of a placard load of dangerous goods through tunnels.

Of concern is that the onus of proof is reversed in proposed s84A(3):

"(3) In the absence of proof to the contrary— (a) a motor vehicle is proved to be carrying a placard load if there is evidence of a placard placed on the vehicle or on a thing carried by the vehicle; and

"(b) a placard load prohibited sign at or before the entrance to a tunnel is taken to be clearly visible to a person entering the tunnel."

The Government points to enforcement issues as a reason for this aspect of the change.

"It is very difficult for enforcement patrols to be effective in tunnel environments where there are high volumes of traffic and no physical space to stop vehicles," it says in amendment’s explanatory notes.

"As such, it is considered that camera-detection of these offences, based on the presence of a dangerous goods placard, is the most effective method."

In expanding on the issue the notes do touch on some defences.

"The matter to be proved (whether a vehicle is carrying dangerous goods) is peculiarly within the defendant's knowledge, as the driver of a vehicle is in the best position to know whether their vehicle is or is not carrying dangerous goods," they say.

"Given the nature of dangerous goods, it is very difficult for enforcement officers on the roadside to test whether a vehicle is carrying dangerous goods. Even if a vehicle is suspected of carrying dangerous goods, it would often require technical or forensic experts to be able to determine whether the goods being carried are dangerous goods and the engagement of these experts would incur considerable expense.

"A defendant is able to produce evidence during the enforcement or prosecution phase to prove that they were not carrying dangerous goods (including transport documentation showing that the goods had already been delivered). An infringement notice would not be issued or a prosecution would not proceed if the evidence supported the defendant's assertions."

But the Law Society remains unconvinced.

"The Society is concerned with the reversal of the onus in criminal law legislation, noting it appears to be an ineffective process by which all potential defendants are notified, and then would need to show that they did not fall foul of the legislation at the time," it says in its submission to the Queensland Parliament’s Transport Housing and Local Government Committee.

"We consider that stating it would be difficult to enforce within tunnels (noting that such measures can equally be taken at the exit points of tunnels), or expensive for the state to prove its case is not sufficient justification for reversing the onus.

"This proposal appears to be a way of relying on cameras together with a reverse onus to replace traditional policing enforcement methods, but at the expense of traditional rights as they should apply in criminal matters."

The committee will hold a public hearing on May 21 and will table its response on June 30.

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