This debate was held on 15/10/2014. You can read the original contribution here.

Mr DAVID SHOEBRIDGE [9.52 p.m.]: I speak on behalf of The Greens on the Crimes Legislation Amendment Bill 2014. This is another one of these compendium bills that makes a number of amendments to crimes legislation as part of the regular update of statutes in New South Wales. It is difficult to get overly excited about any individual amendment that the bill is proposing and indeed as an aggregation it is not an exciting piece of legislation. Nevertheless, I will endeavour to traverse its substance.

Schedule 1.1 amends the Crimes Act, first, to update the definition of consent with respect to sexual assault offences to attempts to commit those offences, meaning that the new statutory definition requiring reasonable grounds to believe consent exists applies to attempt offences. That actually is a change of some substance and of all the amendments to the bill that actually is one that probably could have been worthy of its own stand-alone statutory amendment. It will, I hope, make it less difficult to prove those essential elements where the offence sought to be proved is an attempted sexual assault offence. There is also a proposed amendment to the definition of where consent is negated to include circumstances where the person is falsely given to believe it is for health reasons. That expands from the current situation where this only includes a belief that it is for medical reasons.

Schedule 1.1 [3] amends the Crimes Act to add flares, distress signals and similar items to the definition of possession of a dangerous article in a public place. It is considered that these may not be covered by existing items in the list, despite posing a potential risk to the community. Defences apply if the person had a lawful purpose or reasonable excuse to possess the item. I do not know what spate of distress signal offences or conduct this seeks to address. Nevertheless, it is not opposed as it seems consistent with the other items in the list.

Schedule 1.2 amends the Crimes (Domestic and Personal Violence) Act 2007 to create a regulation-making power for the form of application notices for apprehended violence orders [AVOs]. That is a fundamental reform of the New South Wales criminal justice system—a regulation-making power to allow for a form to be the approved form for AVOs. We are told that such a notice may include information about whether there is a commercial relationship between the parties, any debt owed by one party to the other, previous civil or criminal proceedings and a note that making false statements on the application is an offence. We are told that it is intended that this information would assist the Local Court Registrar in deciding if the AVO is being sought for legitimate reasons and to avoid frivolous and vexatious applications wherever possible. I would hope that a regulation-making power and a new form would have such powers.

Schedule 1.3 amends the Crimes (Forensic Procedures) Act 2000 to retrospectively validate forensic procedures carried out by appropriately trained officers by deeming those having completed the required training as being appropriately qualified officers. I understand that without this amendment a good number of certificates potentially would be open to challenge. Those challenges would be of a technical and not substantive nature and therefore The Greens do not oppose this amendment. Schedule 1.4 makes an amendment to the Crimes (Sentencing Procedure) Act 1999, which will mean that where aggregate sentences are given, the court should make a record of the discrete sentences that would have been imposed had it not been for the aggregate sentence. I assume that is for the purpose of allowing the sentences to be recalibrated in the event that one or two of those individual sentences are successfully appealed without having to go back and review the entire sentencing decisions at first instance.

Schedule 1.6 amends the Criminal Procedure Act 1986 to make clarifications that the Local Court can hear and finally determine matters in a person’s absence on the first return date or subsequent dates if satisfied the person had reasonable notice of the first return date or mention date. We were told this is the practice already in the Local Court when we asked about that in the briefing and that it was simply to clarify the existing practice. I take that information in the briefing on good faith and indeed from very summary inquiries that we made that appears to be the case.

Schedule 1.7 makes a change to the Drug Misuse and Trafficking Act to specify that section 25B offences of manufacture of schedule 9 substances—defined on the Federal Poisons Standard as “Schedule 9 contains substances that should be available only for teaching, training, medical or scientific research including clinical trials conducted with the approval of Commonwealth and/or State and Territory health authorities” and including cannabis, coca leaf and THC—are to be dealt with summarily. This change will apply retrospectively. Schedule 1.8 extends the time within which a charge under the Graffiti Control Act 2008 can be brought from six months to two years.

The Greens had some initial substantial concern with this matter, but we are told that it is intended to cover instances where those who commit such offences record themselves doing so, are stupid enough to put it on social media and those recordings later come to light and are brought to the attention of the police. We were advised that in such cases the extension in the time limit will allow the offences to be considered under the Graffiti Control Act rather than as property damage under the Crimes Act. As I understand the matter, police who become aware of the offence more than six months after the offence was allegedly committed because of the statutory time limit under the Graffiti Control Act, which is a more appropriate measure to deal with those offences, are being dealt with routinely as property damage under the Crimes Act. That is not in the interests of the police or the potential rehabilitation of the offender. The Greens do not oppose that amendment.

Schedule 1.9 amends the Inclosed Lands Protection Act 1901 to create an offence of unlawful re-entry on inclosed lands, which will apply where a person re-enters an event venue despite a re-entry prohibition and it includes a penalty of 10 penalty units. That appears to be a rational power. Schedule 1.11 amends the Terrorism (Police Powers) Act 2002 to clarify that where a monitor seeks advice from a lawyer about communications between a detained person and their lawyer, the disclosure of this monitored information by the lawyer is an offence with a maximum penalty of five years imprisonment. The lawyer would already be compelled under his or her professional obligations to not disclose that matter. I do not understand the rationale for including an additional offence on the statute books. Nevertheless, including it as an offence is not contrary to principle given that it would be a breach of the lawyer’s professional ethics to disclose such matters and given that it is potentially dealing with matters of significant security

The Greens do not oppose these kinds of compendium bills. They provide an opportunity to update and, where necessary, make clarifications, to crimes legislation. Our support of the bill does not include support for the continuation of the Government’s wrong-headed approach to the Graffiti Control Act. That piece of legislation has been amended repeatedly by this Government and the former Government. On the face of it, it is comprehensively failing to do the task for which it was set, which is to be an effective measure for reducing graffiti. The repeated need for amendments to this scheme—this is the fourth time that Act has been amended by this Government—shows the scheme is poorly conceived, which has to be attributed to the hasty drafting of the Government’s amendment. It should be recognised that the Graffiti Control Act has failed. We should be looking at far more creative, sensible and hopefully effective ways of controlling graffiti before another inevitable amendment in six months.