The O’Farrell Government’s first 18 months in office has seen a consistent assault on our civil liberties. From consorting laws, to reviving drunk and disorderly powers for police and mandatory sentencing, the O’Farrell Government has continued the ugly “law and order” politics that has been a blight on NSW for more than 2 decades.
The extent of the attacks reveal a concerted and ideologically driven program to limit and remove fundamental rights from the people of NSW and shift power and control towards the police and the executive Government.
One of the promises the Liberal-Nationals Coalition made during the 2011 election was to break the “law and order auction” in New South Wales, to do things differently, and to ensure that the number of juveniles in our prisons did not increase. They have utterly failed to deliver on this promise.
The Government has said many of these changes are designed to address organised crime in NSW. No evidence has been produced to support these claims or to show that this has been working. Evidence shows that the best way to approach organised crime is traditional police work. Laws which criminalise members of a group, or prohibit having a coffee with a mate, or expand the failed sniffer dog program, are a distraction from the real work of policing and risk our civil liberties for very questionable gains.
It is worth noting that almost all of these measures passed the Parliament with the support of the Labor Opposition, with The Greens often being the only party speaking up for fundamental rights and liberties.
Attacks on NSW Civil Liberties since April 2011
A. Expansion of Move On Directions to individuals
B. Revival of archaic laws on drunk and disorderly conduct
C. Mandatory sentencing
D. Introduction of “consorting” as an offence.
E. Graffiti Legislation Amendment Bill 2011
F. New “Anti-Bikie” Laws
G. Police regulation of tattoo parlours
H. Removal of spousal privilege
I: Removal of Official Visitor Access to those on Preventative Detention
Attacks in the pipeline
Attacks on NSW Civil Liberties since April 2011
One of the first Acts passed in the Parliament was O’Farrell’s Law Enforcement (Powers and Responsibilities) Amendment (Move On Directions) Bill 2011 which gives police an additional power to move on an individual intoxicated person. These laws will enable police to decide, based on their opinion alone, that a person is intoxicated and then force them from a public place.
History shows that police powers such as these are most often used against the vulnerable, such as young people, the homeless, and Aboriginal and Torres Strait Islanders. The use of move-on directions is counter-productive and has been shown to inflame relations with police. It often produces angry interactions leading to more serious charges.
Whilst there may be an argument to allow police to break up rowdy intoxicated groups, there is no justification to allow police to target individuals. This legislation will give police wide powers to hassle and intimidate people at their discretion. We might get more arrests, but we’re not going to get a safer society.
The Government’s Summary Offences Amendment (Intoxicated and Disorderly Conduct) Bill 2011 is a direct throwback to the 1970s when the offence of drunk and disorderly drew regular criticism and was finally struck off the statute books.
The reintroduction of this law was strongly opposed by the Aboriginal Legal Service and is also in direct contradiction to recommendation 79 of the Royal Commission into Aboriginal Deaths in Custody, which states:
In jurisdictions where drunkenness has not been decriminalised, governments should legislate to abolish the offence of public drunkenness.
The Crimes Amendment (Murder of Police Officers) Bill 2011, removed all judicial discretion for sentencing where the defendant is found guilty of having murdered a police officer. The change means that a judge will be required to impose a mandatory life sentence, regardless of whether this fits with the particular circumstances of the case before them.
Anyone who kills a police officer must of course face the full force of the law. But the circumstances in which crimes happen are so infinitely variable that judges must retain some discretion when sentencing to distinguish between such things as cold-blooded contract killing by a 60 year old and the unplanned and impulsive killing by a person in their early 20s. With mandatory life sentences the contract killer would likely serve 20 years jail and the 20 year old 60 years jail.
Mandatory sentencing is strongly opposed by the Greens NSW, it has been shown to inherently lead to unjust outcomes. The Bar Association and the Law Society also both strongly opposed this change.
The Government’s Crimes Amendment (Consorting and Organised Crime) Bill 2012 is part of the suite of legislation being introduced by the Government to address “bikie gangs” in NSW. It reintroduced a version of the 1920s consorting laws that were intended to deal with the “razor gangs” of Paddington.
The law applies to anyone who “habitually consorts” with people who have been convicted of an indictable offence. Habitually in this case means on at least two occasions.
Consorting is an offence regardless of whether or not the person is considered a risk to the community. Situations covered could include being on the same football team or even in the same family.
If this law is universally applied then huge swatches of the community could be criminalised as a result. If, as is more likely, it is applied at the discretion of the police it is of concern that this was a source of potential police corruption and abuse of power. This was its history and now we will likely see this repeated.
The first person convicted under the new laws was, unsurprisingly, not a bikie. It was a young bloke in a country town going to the shops with his mate.
The bill also changes the offence of participating in a criminal group so it is no longer necessary for the prosecution to prove the defendant knowingly participated in a criminal group. It is enough if they recklessly contributed to the occurrence of a criminal activity. That means a person could genuinely not be aware that a group was a criminal organisation, could go before the court charged with this offence and prove to the judge absolutely that they had no knowledge that it was a criminal organisation but still go to jail.
- Debate in Parliament
- David’s website FACT SHEET
- Article from the Australian on 12 August 2012 about the operation of the laws
- New Matilda article “NSW Bikie Laws will catch innocents” 15 August 2012
- NSW Young Lawyers media release on consorting laws
This legislation removed the existing discretion of police officers to issue an on-the-spot fine or a caution for juvenile offenders. Instead, police will now be forced to send a young graffiti offender (who may only have been carrying a spray can or even a permanent marker) straight to court. No discretion. No flexibility.
This was the O’Farrell Government’s first piece of legislation that directly affects juveniles. It is undeniably true that it will increase, rather than reduce, the number of young people in prison. Remarkably one of the more offensive elements in the Bill, which would have seen young people lost their drivers licenses for graffiti offences (and often with it their access to work or education) was stripped out due to the combined vote of the Greens, the Opposition and the Shooters Party.
The Crimes (Criminal Organisation Control) Bill 2012 reintroduced previous New South Wales so-called anti-bikie laws, that the High Court had struck down in 2011.
Under these laws, the Commissioner for Police can apply for an organisation to be considered a “declared” organisation—effectively, an illegal organisation. An organisation can be “declared” if a significant minority of members of the organisation, associates in whole or in part for the purpose of criminal activity. Once an organisation is “declared” then members of the organisation can be the subject of “control orders”. Breaches of these can result in substantial jail sentences.
Of serious concern is the fact that any association can be the subject of a declaration if only some of its members engage in criminal activity. This is true whether or not they and other members get together for other legitimate purposes. This law could easily apply to genuine protest groups, there are no meaningful safeguards in the Act to protect against this.
The NSW Bar Association and Law Society also strongly opposed this legislation on the grounds that it unfairly impinges on human rights in NSW. As with so many of these laws everyone but the Greens supported this change in Parliament.
The Government’s Tattoo Parlours Bill 2012 introduced a licensing scheme for tattoo parlours in NSW, a positive step to manage this industry appropriately. It also however contained a number of more troubling changes – including the requirement that anyone applying for a license for a tattoo parlour must give their fingerprints and palm prints to the police with next to no constraints as to what the police can do with those prints.
Changes were also made which allow the police to enter tattoo parlours with sniffer dogs at any time without any reasonable suspicion that illegal activity is being conducted at the premises. This will subject people to intrusive searches at the whim of police, without any requirement that there be reasonable grounds to justify such an intrusion.
The government justified these new powers as getting to the root of organised crime and bikie gang violence. Really? The Greens have heard credible reports that illegal crime gangs have more lucrative sources of funds that tattoo salons including drug dealing, fraud, extortion and gun-running. These are all existing crimes that should be the main focus of police, not regulating the tattoo industry.
The Crimes Legislation Amendment Bill 2012 removed the common law protection of spousal privilege. In common law in Australia, and before that in England, there has been a long tradition regarding immunity. A spouse—wife, husband or common law partner—could not be compelled to convict their wife, husband or common law partner out of their own mouth.
This law will make it a blanket rule that, regardless of the circumstances, it will be a crime to not dob your partner in to the police. This will apply even in circumstances where a woman is living in a violent relationship and does not approach police to actively disclose information her partner may have told her.
Clearly there are some cases (such as failure to protect children by not disclosing sexual abuse) where the privilege is not appropriate. However the blanket removal was poorly thought through and a Greens amendment to refer the matter to the Law Reform Commission was rejected.
The O’Farrell Government re-enacted Labor’s Terrorism (Police Powers)Regulation with an additional provision specifically excluding Official Visitors (independent people with ombudsman like powers to keep an eye on prisons from being able to visit people held under preventative detention orders under the Terrorism (Police Powers) Act 2002.
This basically means that people who can be held indefinitely in NSW Prisons under these anti-terror laws without charge, will have no recourse to an independent external person to whom they would be able to make any complaints about the conditions of their incarceration.
What’s in the pipeline?
The NSW government plans to abolish one of the oldest principles of the legal system: the right of an accused person to remain silent under questioning by police.
Under the proposed changes, the refusal to answer questions could harm a person’s defence in a later court case. The change has been sold as a win for victims. In reality, the change will put at risk the presumption of innocence. The risk in NSW is even greater because citizens have no Bill of Rights to ensure they get a fair trial or the right to adequate legal assistance.
It is almost universally agreed that the most likely effect of the proposed changes is that many people, including the innocent, will be pressured into answering questions or making admissions in circumstances where it is contrary to their interests to do so. If it has been determined that such a change will definitely be made, increased protections must urgently be considered and included in the legislation.
The reason the right to silence has stood so long is because it protects individuals from the heavy-handed use of police powers. Although the Government is ostensibly consulting on this change at present, their media statements suggest that the removal of this right is a done deal.
- More on David’s website
- Council for Civil Liberties fact sheet on right to silence
- Law Reform Commission report on the right to silence
- Bar Association submission on the right to silence
- Government media release
- Attorney General’s department consultation page
The Government has substantially expanded operations for police sniffer dogs across the whole of the Sydney, Illawarra and Hunter train network and Kings Cross in a step that will expose yet more innocent people to intrusive and humiliating public searches following false positives by the dogs.
In the first nine months of 2011 police publicly searched 14,102 people for drugs following positive indications by police dogs, and on 11,248 occasions no drugs were found. Hundreds of times every week the police sniffer dog program is exposing people to ritual humiliation in the form of intrusive public searches, only to find no drugs and no criminal offence.
This expansion fails to reflect that the sniffer dog program is not effective in targeting serious crime. Searches at train stations are unlikely to catch serious dealers and organised crime, and more likely to affect young and already marginalised people. When asked the police cannot even produce protection rates from sniffer dog searches.
The Government has made media comments indicating it is likely that they will bring in legislation to provide for indefinite detention to protect against “future crime”. Under such a program some prisoners who are deemed not to have been rehabilitated would be able to be imprisoned after they have served their sentence and potentially indefinitely.
The Law Society of NSW has spoken strongly against this proposed change, identifying it as eroding the principle of the justice system that you can only be punished for crimes that you have committed, rather than potential future crimes. It is likely that these provisions would be used by politicians to seek to extend sentences in response to perceived public pressure, producing vigilante justice. While any extension of the sentence would have to be approved by a Supreme Court Judge, this is no safeguard as judges will have no proven capacity to assess the likelihood of future crime. Their skills are in deciding what happened in the past, and how the law applies to this.
The Government has made promises that it would also introduce so-called “sobering up centres” where those who are considered by police to be intoxicated could be effectively incarcerated despite not being charged with any crime. The NSW Police Association is among those who oppose such a policy with President Scott Weber saying “Police cells are no place for persons affected by alcohol or drugs as there are significant duty of care issues and enhanced chances of self-harm, suicide and medical complications from the substances ingested.”
Since entering government, Attorney General Greg Smith has initiated reviews not only of the Young Offenders Act 1997 and the Children (Criminal Proceedings) Act 1987 but also the bail and sentencing laws, all of which have major implications for civil liberties. The sentiment might be nice but these potential positive changes have yet to bear any fruit.
As the history shows in less than 2 years the O’Farrell Government has seriously eroded our civil liberties. Perhaps the Attorney General is right that there will be no “law and order auction”. Instead it has become a civil rights giveaway.
Police should be focusing on outreach, investigation and prosecuting serious crimes, not running a fine-toothed comb over your personal activities.
Laws like this have a disproportionate impact on less advantaged people in society, like Aboriginal people, young people and people living with mental illness.
It is an unfortunate reality that governments usually only do the right thing when there is a significant amount of public pressure.
Can you help us campaign against these changes?
- Share what is going on using social media, or by forwarding this email to people and organisations that you know.
- Write a letter to Barry O’Farrell and your local Member of Parliament
If you do send an email or letter, please copy us in.
Thanks in advance for getting involved in the campaign to save our civil liberties in NSW.