Statement Opposing Draconian "Future Crime" Laws

The NSW government today debated new draconian laws that would allow for an individual to be incarcerated for a crime they have not yet committed. Read Jenny's statement opposing these "future crime" laws.


Ms JENNY LEONG ( Newtown ) ( 17:34 :15 ): I speak on behalf of The Greens to express our deep concern about this bill. It is yet another in a long line of draconian actions from this Government that do far more to damage our civil liberties than to protect public safety. The object of this legislation is to allow for continuing detention powers aimed at suspected terrorists. This law penalises future crime, rather than any actual offences committed by a person. The Greens have a strong and principled stance that believes that keeping people in jail for a crime they have not committed is an extremely dangerous erosion of our civil liberties. Continuing to impose punishment after any period of incarceration has been served is simply wrong. It is clear that people in the community fear acts of terrorism. The act of terrorism is designed to create fear and the response from governments to be able to address the fear that people feel is not to let that terror be propagated by introducing measures that create more fear within our community, by talking up the risks and the terrors that we face and by winding back human rights and civil liberties and the principles of justice and freedom that we should be valuing. The terrorists win when we pass laws like this that wind back our human rights and civil liberties.

This is not the way to address terrorism and it is not the way that we respect fundamental human rights. But it is not just The Greens that believe this. The NSW Bar Association has consistently opposed the statutory high-risk offenders regime and has said that the amendments proposed will extend the cohort of offenders caught by the Act, remove safeguards and are contrary to established sentencing principles. The New South Wales Council for Civil Liberties strongly opposes the post-sentence continuing imprisonment of persons.

Mr David Elliott: What a surprise, what a surprise.

Ms JENNY LEONG: I note the Minister's interjection saying, in a sarcastic way, "What a surprise" that the Council for Civil Liberties opposes the bill. How wonderful that there is such respect from this Liberal Government for organisations and groups in society that stand up for civil liberty and human rights. It is offensive to see that the organisations and groups that have been attempting to prevent the wind-back of civil liberties are spoken about in such a way by the Minister. No wonder they are concerned. No new crime will have been committed and no trial will be held. This raises serious issues for the Council for Civil Liberties in relation to the fundamental right to freedom from arbitrary detention, and the long-established common law understanding relating to the right to a fair trial and the role of the judiciary in our justice system.

It is indeed a dangerous trend. A central problem with the continuing detention regime is the inherent unreliability of any known risk assessment tool or process to determine whether a person is likely to commit a future terrorist crime, unless they clearly indicate that this is their intention. If so, they can be charged and tried under existing terrorism laws. A combined submission from a number of the councils for civil liberties across Australia addresses the fact that this bill is unjustified and a serious encroachment on the fundamental rights of liberty of the person and of the rule of law.

The Greens have specific concerns about this bill. We are concerned about how the bill will apply to convicted terrorism activity offenders and convicted underlying terrorism offenders. The definition of this is extraordinarily broad. Clause 10 (2) makes it clear that the offender does not even have to have been convicted of a terrorism offence for the conduct concerned. Clause 11 sets out the test for determining whether an individual is a convicted underlying terrorist offender or a convicted terrorism activity offender. Once again, this test is extraordinarily broad. Clause 11 paragraph (h) prescribes that any intelligence regarding the offender's associates or affiliations can be considered and paragraph (j) prescribes that any other information the court considers relevant will be considered. As it is written, this law would apply to somebody whose workmate, friend, cousin, child or sibling was in a terrorist organisation. They may be in jail for unrelated offences but any association or any affiliation with any persons or groups advocating for support of terrorist acts is enough for somebody to be caught up in these changes. That is a seriously disturbing change to our laws in New South Wales.

Clause 21 sets out that the Supreme Court is not required to be satisfied that there is a more than likely risk that the offender will commit a terrorism offence and suspicion alone appears to be enough for an extended supervision order to be applied. Extended supervision orders can be imposed for up to three years but nothing prohibits the Supreme Court from extending orders indefinitely. Clause 29 sets out the conditions that can be imposed on individuals the subject of an extended or interim supervision order. Individuals may be electronically tagged and monitored. Enforcement officers are permitted to visit the offender's home at any time and to seize their electronic devices and data and other personal items owned by the individual for a forensic examination.

Part 3 of the bill sets out the process for making continuing detention orders. Continuing detention orders allow individuals to be in prison for up to three years after their sentence has expired. Nothing prohibits the Supreme Court from extending orders indefinitely. Clause 35 again sets out that the Supreme Court is not required to be satisfied that there is a more than likely risk that the offender will commit a terrorism offence. Suspicion alone appears to be enough for a continuing detention order to be applied. Clause 39 sets out the process the Supreme Court must follow when determining the application for a continuing detention order. Clause 39 (c) states that "The safety of the community must be the paramount consideration of the Supreme Court". Once again, civil liberties are eroded under the guise of community safety which trumps all.

My colleague in the other place Mr David Shoebridge has expressed his concerns about the bill. He has said that these are thought crimes where the evidence will be given by prison officers with minimal regard to essential legal principles such as the presumption of innocence and credible independent evidence.

Mr Shoebridge said:

We are letting terrorists win if just the fear of them makes us give up what makes us a free and fair democra tic society.

The Greens cannot support this bill. I appreciate the frustration of the Minister and the Coalition Government when The Greens come into this place and time and again oppose attempts by the Government to appear tough on law and order and terrorism. The Greens will not cave in to the fear that those opposite are trying to whip up. There are genuine solutions to address the terror and fear inflicted by radical terrorist acts in our community rather than introducing legislation such as this, which is creating a parallel criminal justice system based on rumour, innuendo, suspicion and prejudice.

The Greens do not support jailing people for offences they might commit in the future. There is a raft of criminal offences to capture anybody who plans, conspires or takes any steps to further a terrorist offence. These laws will not make us safer but they will undermine efforts at rehabilitation and the fundamental principles of common law and will further erode the protection of human rights and civil liberties in this State. It is a shame. Unfortunately this Liberal-Nationals Government is consistently behaving in this manner.


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