This speech was delivered on 15/10/2013 in the NSW Upper House. You can read the full debate online here.

Mr DAVID SHOEBRIDGE [5.59 p.m.]: I appreciate the Government’s detailed response to the amendments. I will make a few observations. First, there is only a very limited ability in any party to challenge evidence when it comes before a court in a trial. There would be a far more limited capacity to challenge evidence under one of the discretionary provisions in the Evidence Act once the matter came before the court for trial and it would put in place substantial uncertainty about the prosecution’s case until such time as those matters are determined at trial, potentially after spending tens or hundreds of thousands of dollars of public money in pulling together a prosecution brief, commencing legal proceedings and getting them before the District Court or the Supreme Court.

It would be far better to make those determinations earlier through this prompt procedure that The Greens are proposing in relation to challenging the lawfulness or otherwise of these powers. Far from the Government’s concerns that this regime would cause difficulties in prosecutions, this regime would likely have a substantial benefit in that those kinds of decisions would be made well in advance of a trial and before countless thousands of dollars of public money is spent on pulling together a brief that ultimately may have a fundamental flaw in that the evidence obtained falls foul of the very kinds of considerations that The Greens say should be looked at in this early and summary fashion in the Local Court.

Secondly, absent this kind of express statutory power to review, the real concern is that instead of going through this summary and effective process, cashed-up members of drug cartels and cashed-up members of bikie gangs will embark on expensive Supreme Court proceedings to challenge the question of whether the search has been reasonable, as set out in proposed section 74A, which states that the powers of a police officer can only be exercised as reasonably required. Any well-informed, cashed-up criminal who is concerned about the exercise of those search powers would, absent The Greens arrangement—a summary, effective, quick, focused review in the Local Court—take these matters for a declaration in the Supreme Court, which will be vastly more expensive and vastly more uncertain under the Supreme Court’s general declaratory powers. I believe that is a much more troublesome approach for the prompt review of these kinds of administrative powers.

I genuinely do not think the Government has seriously thought through how this will work in practice. The Greens have and we have considered the most effective way of having these issues determined in a manner over which the Parliament has some control, and that is that the Parliament puts in place the criteria, puts in place the time frames and puts in place a quick, summary process to have those issues determined. The Greens have done that in our amendment by proposing that these powers be reviewed by the Local Court. The Government thinks that by not supporting the amendment that somehow it will avoid legal scrutiny. Far from it: The Government will find that lengthy and expensive declaratory proceedings will be brought in the Supreme Court about whether or not the exercise of the powers by the police under section 74A are reasonable.

The very arguments that we say should be determined quickly and cheaply in the Local Court within three months of the powers being exercised instead will be tied up for months or years—going to the Supreme Court, an appeal to the Court of Appeal and questions being tested by special leave in the High Court. That is not a sensible approach. The Parliament is far better off putting in place some well thought out checks and balances, some clear statutory powers and a clear regime to oversight these powers where it can structure the terms in which the oversight is carried out. The Greens have put forward this model because we think it greatly improves the Government’s bill and it supports civil liberties. But absent this we will have cashed-up drug criminals taking the matter up in a much more unfocused set of challenges in the Supreme Court. That is not in anyone’s interest.

Further, people who may not be cashed up, people who do not have large amounts of money, the kind of ordinary people who may be caught up in this regime who want to challenge the exercise of the police powers, will not have available to them a quick, effective, summary process in the Local Court. Someone who thinks they have been unfairly dealt with because their mental illness is under control and they should not be the subject of a prohibited weapons order and they should not be the subject of these searches should have access to a quick, effective, summary procedure in the Local Court and should not be forced to take expensive proceedings in the Supreme Court.

This amendment is not intended to defeat the purpose of the legislation; it is intended to put in place some sensible checks and balances that protect civil liberties in a way that will allow these issues to be resolved quickly, effectively and fairly. For that reason we did not support these review powers being exercised by the Administrative Decisions Tribunal—not because we do not believe the members of that tribunal are good; there are some excellent members of that tribunal—but the rules and procedure in the Administrative Decisions Tribunal mean that cases get bogged down for months and months, if not years, in the tribunal and take forever to get an initial ruling.

It can then take months and months or years to get an appeal review in the Administrative Decisions Tribunal. That is why The Greens support a new administrative regime with the NSW Civil and Administrative Tribunal, hopefully starting early next year. But until we see the way it operates we do not support having these kinds of reviews carried out in the Administrative Decisions Tribunal. We do not think that would be effective, fair or timely. We urge members to consider these amendments seriously. We urge the Government to rethink its position, which I think has come more from a knee-jerk response from the Ministry than a fair and objective review of The Greens amendments.