Our Civil Liberties Are Under Attack

NSW Liberal Government pushes through legislation that undermines the fundamental principles of the criminal justice system, including the right to presumption of innocence, the right to a fair trial and protections against double punishment.


Ms JENNY LEONG ( Newtown ) ( 17:19 :38 ): On behalf of The Greens I speak in debate on the Crimes (Serious Crime Prevention Orders) Bill 2016 and the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016. The Greens oppose the bills. They are a threat to basic rights and individual freedoms and they remove key protections from our criminal justice system. The Crimes (Serious Crime Prevention Orders) Bill 2016 allows the Supreme Court pre- or post-conviction and the District Court post-conviction to place restrictions on people or businesses "involved in serious crime or terrorism offences". An application must be brought by the Director of Public Prosecutions, the Crime Commission or the Commissioner of Police and can impose requirements or restrictions on the person "if there are reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting the person's involvement in serious crime". The court can admit and take into account hearsay evidence if it believes it is reliable and relevant, and the person who is the subject of the order is notified.

"Serious crime related activity" is defined as anything done that is a serious criminal offence even if a person is not charged or they are tried and acquitted. Involvement in such activity includes conduct that facilitates or is likely to facilitate another person "engaging in serious crime". Serious crime prevention orders can include prohibitions, restrictions, requirements and other provisions that the court thinks are appropriate to protect the public by preventing, restricting or disrupting involvement by the person in serious crime-related activity. Orders can be for up to five years and the maximum penalty for breaching them is 1,500 penalty units for a corporation or 300 penalty units for an individual, which amounts to $33,000 or five years jail.

The bill also includes provisions that allow corporations that are the subject of orders to wind up companies and dissolve partnerships. The public safety orders bill creates a new power under the Law Enforcement (Powers and Responsibilities) Act that allows a senior police officer to ban people from places or events where they are "expected to present a serious threat to public safety or security". The order can prohibit a person from attending a specified public event or entering or being within a specific area or premises. The order can be made only if the officer is satisfied that the presence of the person poses a serious risk to public safety or security and the order is reasonably necessary in the circumstances.

When considering what is reasonably necessary an officer must consider: any history of the person engaging in serious crime-related activity; if they are a member of a declared organisation or subject to a control order; the public interest in maintaining freedom to protest or engage in industrial action; if the order would stop a person from being able to work, study or receive health care; if the content of the order is proportionate to the degree of risk posed; and the extent to which the order will mitigate risk to public safety or security, especially compared with other measures reasonably available.

A serious risk to public safety or security is defined as something that might result in death or serious physical harm to a person or serious damage to property. Orders can be kept secret by the commissioner on application to the Supreme Court if the application relates to a criminal intelligence report. A notification in writing, including reasons, must be served on the person. If the person is under 18 or has impaired intellectual functioning it can be served on a guardian; however, the order is binding even if that is not done. If the officer thinks the order should be binding as a matter of urgency they can communicate it verbally instead. Breaching an order can result in imprisonment for five years.

There are also changes to make it easier for police to confiscate assets and deal with money laundering. It is clear that the changes proposed in the bills are broad reaching and very concerning. But let us be clear: It is not just The Greens who oppose these laws. The Law Society of New South Wales has raised serious concerns strongly opposing the passage of the bills as a rule of law matter and in order to protect fundamental rights and democratic institutions. It stated:

The proposals under the Bills appear to be an attempt to circumvent the usual protections of criminal justice procedures ...

The Law Society considers that the extension of executive powers proposed by the Bills would erode longstanding rights including the presumption of innocence, the right to a fair trial, the right to property, and the right to be protected against double punishment.

The Bills would also potentially place limitations on fundamental human rights protecting against arbitrary arrest and detention, and the freedoms of expression, communication and association. The Bills are also likely to compromise the integrity of court processes, and the Law Society submits that this would erode democratic institutions.

The Law Society does not consider the bills to be appropriately targeted at organised crime or community safety. As we have heard from other members in this place, the New South Wales Bar Association is just as strong in its opposition to this legislation. It says:

The Bill creates broad new powers which can be used to interfere in the liberty and privacy of persons, and to restrict their freedom of movement, expression, communication, and assembly. The powers are not subject to necessary legal constraints or appropriate and adequate judicial oversight, and in many cases basic rules of evidence are circumvented.

The question has to be asked: Why were the New South Wales Bar Association, the Law Society and other legal and professional bodies involved in law enforcement, legal reform, civil liberties and human rights not consulted about this bill? This is a process that would usually be handled by the Attorney General, but it has not been done in this case. Consultation with those key law bodies, key advisory groups, and human rights and civil liberties organisations has not been undertaken. In his second reading speech, the Minister said:

The purpose of these bills is to deliver on the Government's election commitment to introduce tough new powers to give police the upper hand in the fight against serious crime.

In the same speech, the Minister also provided perhaps the most compelling argument against these laws when he stated:

Within New South Wales strike forces Talon and Raptor have been effective in curbing gun and organised crime, arresting more than 4,400 persons and seizing more than 1,000 firearms.

These broad-reaching and seriously concerning new powers are not necessary. They undermine fundamental principles of the criminal justice system, including the right to presumption of innocence, the right to a fair trial and protections against double punishment. Rather than creating new powers and offences, police resources should continue to be directed towards solid and effective police work.


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