CONFIDENTIAL
XCCI(92)7
The court went on to provide a clear test for determining the validity of statutory presumptions. That test has been shown to be one which other courts can readily apply. It also provides clear guidance to the Government in formulating presumptions in new legislation.
16
It is too soon to assess with any confidence the impact of the Bill of Rights on the legal system. With only one criminal and one civil decision by the Court of Appeal interpreting the Bill of Rights, there is not yet a sufficient body of precedent to advise how the appellate courts will construe particular articles of the Bill of Rights. To date, the Bill of Rights has not resulted in any fundamental change in the operation of the legal system, nor have the courts become clogged with issues raised under the legislation. The legal profession has generally been slow to take up the opportunities afforded by the Bill of Rights for challenging existing law and practice. This might be attributed partly to the conservative nature of the profession, but also to the cost of mounting a Bill of Rights challenge. Many of the potential issues under the Bill of Rights arise in summary offences where the potential penalty upon conviction would be far outweighed by the cost of several days of legal argument and the high likelihood of an appeal in the event of a ruling against the Crown. Experience suggests that many privately represented defendants initially raise Bill of Rights issues only to abandon them at a later stage for this reason.
17
A potential problem in the future stems from section 3(2) of the Ordinance which provides that legislation in existence before the commencement of the Bill of Rights (8 June 1991) is repealed to the extent that it does not admit of a construction consistent with the Bill of Rights. In the criminal field, if a provision is held to be repealed, this will inevitably result in applications to appeal (out of time) by persons convicted under the provision on or after 8 June 1991.
ATTENDANCE
Mr. I. DEANE
Assistant Solicitor General
22 January 1992
(AGC ADV 638/00C)
COUNCIL CHAMBER
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