Greens in Parliament: Bail Amendments and Extraordinary Police Powers

Today the Government introduced unnecessary changes to bail laws making the application of bail less transparent and less consistent, and extending extraordinary police powers. Read our speech opposing these changes below. 


Ms JENNY LEONG (Newtown) [11.15 a.m.]: On behalf of The Greens I speak in debate on the Bail Amendment Bill 2015 and the cognate Terrorism (Police Powers) Bill 2015. The Greens do not support the amendments to the bills. I am aware that our position will draw criticism from members on the other side of the Chamber and from those behind me. I will deal with the bills separately. The Bail Amendment Bill 2015 will add further complications to the assessments under the bail regime, making the application of bail less transparent and less consistent. It is not considered likely to improve the safety of residents in New South Wales in any meaningful way. The Greens believe the bill is premature. The coronial investigation into the Martin Place siege is ongoing and is considering the subject of bail in some detail. There is little reason to push the changes through now, when in only a few months another tranche of amendments will be required.

The compulsion of successive Labor and Liberal governments alike to meddle with the bail laws produced the previous bail system, which was roundly decried for being overly complex and inconsistent in its application. While recommendations have been received from the Martin Place siege review, those from the coronial inquest will be of equal importance and have not yet been made. As such, the legislation is premature. In June 2013 the Law Reform Commission report was tabled in the New South Wales Parliament by then Attorney General Greg Smith. The report described the New South Wales bail system at the time as voluminous, unwieldy and hugely complex, and, that the results are frequently anomalous and unjust. The report led to the new simplified Bail Act.

The Bail Bill 2013 was introduced into the New South Wales Parliament on 1 May 2013 and commenced on 20 May 2014. By the time the bill was implemented, the Government had already been spooked on bail and in June 2014 it ordered a lightning speed review by former Attorney General John Hatzistergos. With those amendments to the Bail Act, we are now returning to the situation where the New South Wales bail law will again become too complicated, too unwieldy and too reactionary as a result of the media cycle. The interim report of the Hatzistergos review resulted in the Bail Amendment Act 2014, which created a new show cause test for adults charged with certain offences. For certain serious offences, the accused must first show cause why his or her detention is not justified and once this is satisfied the usual unacceptable risk test is considered. This legislation creates more tests—tests for exceptional circumstances and show cause tests—adding unnecessary complications. Under both of those tests, the unacceptable risk test must also be considered.

The current unacceptable risk test is already broad and comprehensive enough to be used on its own. Some examples of what is already within the scope of the unacceptable risk test include: assessing the accused person's background, assessing his or her criminal history, assessing his or her circumstances and community ties, whether the accused person has a history of violence, whether the accused person has previously committed a serious offence while on bail, whether the accused person has any criminal associations, the conduct of the accused person towards any victim of the offence or any family member of a victim after the offence, and what the likely effect is of an offence on any victim or the community in general. As you can see from the nearly 20 examples of what needs to be considered in the unacceptable risks test, the powers are already broad and comprehensive enough to be used on their own.

I will now address the Terrorism (Police Powers) Bill 2015, which seeks to stop existing police powers in this bill from sunsetting in December 2015 and extend them for another three years. The Greens do not support this extension. Sunset clauses such as this are often included in bills as a way of suggesting that the powers are intended for only a limited time in response to a certain kind of threat. Often the sunset clause is a way of silencing those concerns about the impact of these powers on the community as a whole—on civil liberties and human rights. They are used as a reassurance that may sound something like, "We know that these are extreme measures, but don't worry, we are putting in a sunset clause; they are only temporary."

As far as The Greens are aware, when it comes to terrorism and police-related legislation, sunset clauses like this have never set anywhere in Australia. Every three years the relevant department dutifully undertakes the legislative review of the Act. Remarkably, in each case the conclusions are the same. Despite the fact that the powers under the Act have been exercised only in extremely rare circumstances, and despite the fact that all the submissions received raise serious concerns with the legislation and the safeguards, the recommendation is that the law should be extended.

If there is reason that these powers are required and if there are cases where they have been used to prevent harm to the community why have we not seen evidence of this? Where is the evidence of these powers being necessary? We have seen people successfully charged and prosecuted for terrorism offences using traditional police powers, which were effective and gave police the scope they needed. Since the introduction of these powers, serious concerns have been raised by human rights groups—from civil liberties organisations through to those in the legal profession. Article 9 of the International Covenant on Civil and Political rights says:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention …

It continues:

  1. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Detention without trial is not acceptable. Article 9 of the covenant continues:

  1. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

The Government has provided no evidence to support the ongoing need for these laws or their efficacy over the past 13 years. The simple fact is that where terrorism laws and police powers are concerned, the sun never sets. I think it is an indication of the state of our community and our society that I feel a sense of fear in standing in this place to oppose the extension of these terrorism laws today. The existing ordinary police powers are available and terrorism offences can be dealt with within the normal criminal justice system. Someone must be willing to stand up and say that introducing, increasing and continuing these terrorism police power laws will reduce our freedoms, our human rights and our basic civil liberties. That is why The Greens will not support these bills. Many in the community expect The Greens—and me, as the representative of the people of Newtown—to say that this is not the way to address these problems. We should not be curbing our civil liberties and our rights in the name of the so-called defence against terrorism.


Link to Hansard

Sign up for updates