4 May 2016
In Committee, Labor Amendments
The Hon. ADAM SEARLE ( 20:06 ): By leave: I move Opposition amendments Nos 1, 6, 7, 9, 11, 14, 19 and 25 to 29 in globo:
No. 1 Supreme Court to make all serious crime prevention orders
Page 2, cl ause 3 (1), lines 9–15. Omit all words on those lines.
No. 6 Supreme Court to make all serious crime prevention orders
Page 3, clause 4 (2), line 2. Omit “ a court “. Insert instead “the Supreme Court” .
No. 7 Supreme Court to make all serious crime prevention orders
Page 4, clause 5 (1), line 3. Omit “An appropriate court”. Insert instead “ The Supreme C ourt” .
No. 9 Supreme Court to make all serious crime prevention orders
Page 4, clause 5 (1) (b), line 6. Omit “court”. Insert instead “Court” .
No. 11 Supreme Court to make all serious crime prevention orders
Page 4, clause 5 (1) (c), line 12. Omit “court”. Insert instead “Court” .
No. 14 Supreme Court to make all serious crime prevention orders
Page 4, clause 5 (3), line 22. Omit “ appropriate court “. Ins ert instead “Court” .
No. 19 Supreme Court to make all serious crime prevention orders
Page 4, clause 6 (1), line 41. Omit “court”. Insert instead “Supreme Court” .
No. 25 Supreme Court to make all serious crime prevention orders
Page 7, clause 12 (1), lines 33 and 34. Omit “ The court that makes a serious crime prevention order may at an y time vary or revoke the order”. Insert instead “ The Supreme Court may vary or revoke a serious cri me prevention order at any time” .
No. 26 Supreme Court to make all serious crime prevention orders
Page 7, clause 12 (2), l ine 39. Omit “court” wher ever occurring. Insert instead “Court” .
No. 27 Supreme Court to make all serious crime prevention orders
Page 7 , clause 12 (3), line 42. Omit “court”. Insert instead “Court” .
No. 28 Supreme Court to make all serious crime prevention orders
Page 8, clause 12 (3) (b), line 1. Omit “court”. Insert instead “Court” .
No. 29 Supreme Court to make all serious crime prevention orders
Page 9, clause 14, lines 12 and 13. Omit “ , the Supreme Court Act 1970 and the District Court Act 1973 “. Insert instead “ and the Supreme Court Act 1970 “.
The effect of this cluster of amendments is to reserve only to the Supreme Court the capacity to make serious crime prevention orders. At present, with and without a conviction, the Supreme Court may, on the grounds specified in the bill, issue a serious crime prevention order. The District Court may also make an order post‑conviction, where a person has been convicted of a serious crime-related activity. There is the protection that in the District Court it is post-conviction. Nevertheless, the Opposition considers these orders to be an innovation in the law. They are powerful and far-reaching. The Opposition believes that, until such time as there is well‑developed and understood jurisprudence, given the potential for excess or mistakes that occur in all criminal justice systems without there being any intention to do wrong—because all systems operated by people are fallible—it would be a prudent course of action to reserve only to the highest court of this State and its justices the capacity to make these highly unusual orders. I elaborated upon the further reasons in my contribution to the debate on the second reading. I will not repeat those reasons here.
The Hon. ADAM SEARLE ( 20:14 ): I thank the two previous speakers. Given the gravity of the legislation that we are debating and the very serious issues involved, no matter whether we take the approach of public safety from organised crime or say that even such laws as those which we all support should have proper safeguards to protect the traditional legal rights and liberties of the citizens and residents of this State, whatever view we take about these matters we should be present for the debate, because these are very significant matters and will have great consequences whichever way this debate goes.
I understand that the Government prefers what it refers to as the United Kingdom model in this respect. If what it had presented to the Parliament was in fact the United Kingdom model with all of its attributes, this debate might have been a lot shorter, and it may have removed the need for all these amendments. Nevertheless, because of the pervasive and unusual nature of these orders we think the safer and more prudent course of action is to have only the Supreme Court dealing with these, at least until such time as the operation of these laws and their nature is truly understood. It is because we are taking a cautious approach that we propose these amendments, and I urge all members to vote with us.
The Hon. ADAM SEARLE ( 20:28 ): By leave: I move Opposition amendments Nos 2, 8, 15 to 18, 22 and 23 on sheet C2016-032D in globo:
No. 2 Only DPP can make applications
Page 2, clause 3 (1), lines 16–19. Omit all words on those lines.
No. 8 Only DPP can make applications
Page 4, clause 5 (1), line 3. Omit “ an eligible applicant “ . Insert instead “ the Director of Public Prosecutions “.
No.15 Only DPP can make applications
Pa ge 4, clause 5 (3), line 22. Omit “ applicant “. Insert instead “ Director of Public Prosecutions “ .
No. 16 Hearsay evidence admissible only under ordinary law
Page 4, clause 5 (5), lines 28–35. Omit all words on those lines.
No. 17 Only DPP can make applications
Page 4, clause 5 (6), line 36. Omit “ applicant “ . Insert instead “ Director of Public Prosecutions “ .
No. 18 Only DPP can make applications
Page 4, clause 5 (6), line 37. Omit “ applicant “ . Insert instead “ Director of Public Prosecutions “ .
No. 22 Only DPP can make applications
Page 5, clause 9 (1), line 36. Omit “ An eligible applicant “ . Insert instead “ The Director of Public Prosecutions “ .
No. 23 Only DPP can make applications
Page 6, clause 10 (1), line 43. Omit “ An eligible applicant “ . Insert ins tead “ The Director of Public Prosecutions “ .
These amendments, together, would have the effect of restricting the class of applicants for a Serious Crime Prevention Order to the person holding the office, from time to time, of the Director of Public Prosecutions [DPP]. The rationale for this is that there should be a distinction between the prosecutors and the law enforcement agencies, whose job it is to identify and apprehend criminals or alleged criminals and to gather the evidence in support of prosecution or evidence that would lead to them being controlled under this legislation. This legislation in its current form allows not only the DPP but also the Commissioner of Police and the Commissioner of the Crime Commission to do that.
We think that that is blurring the separation in the law enforcement area. In the British model—as the member for Ku-ring-gai adverted—the class of applicants is the Director for Public Prosecutions (England and Wales) the Director of Public Prosecutions for Northern Ireland, the Director of the Serious Fraud Office and the Director of Revenue and Customs. My knowledge of English law is imperfect, but as I understand it those are essentially the persons charged with making prosecutorial decisions. Those persons are not the cops on the beat; the Commissioner of Police and the Crime Commissioner are the cops on the beat. We think it is important, if we are to have this regime of unusual orders with broad and pervasive effects curtailing traditional legal rights, to maintain the structure that currently exists in our system of criminal justice. I understand that the objective is to disrupt serious and organised crime—an objective that the Labor Opposition shares—but I do not think that you should throw the baby out with the bathwater.
The police and the Crime Commission gather the evidence and apprehend the criminals. The DPP should decide when and whether to lay charges or when and whether to seek these pervasive orders. We think it is important because in the UK context—not in the legislation but in the prosecutorial guidelines—it is quite clear that the Serious Crime Prevention Orders, as they are known in this bill, provide a clear alternative to criminal prosecutions. You should not double up; you should not have two hits at citizens, whatever you think they may have done. The Opposition thinks that these amendments provide an important safeguard that will not affect the objective or the efficacy of the legislation, but will improve the integrity of laws and will lead to increased public confidence in such novel and innovative laws, if they are enacted.
The Hon. ADAM SEARLE ( 20:44 ): By leave: I move Opposition amendments Nos 3, 10 and 13 on sheet C2016-032D in globo:
No. 3 Serious crime prevention order cannot be made against acquitted person
Page 2, clause 3 (1), lines 23–30. Omit all words on those lines. Insert instead:
serious crime related activity means anything done by a person that is or was at the time a serious criminal offence (including a serious criminal offence for which the person has not been charged or tried), but does not include a serious criminal offence for which the person has been acquitted (whether by the trial court or on an appeal or other review).
No. 10 Serious crime prevention order cannot be made against acquitted person
Page 4, clause 5 (1) (b) (ii), lines 10 and 11. Omit all words on those lines. Insert instead “ (including by reason of not being charged with or tried for such an offence), and “ .
No. 13 Serious crime prevention order cannot be made against acquitted person
Page 4, clause 5 (2), lines 15–21. Omit all words on those lines.
These amendments would remove the capacity for those named statutory office holders to seek a serious crime prevention order against a person who has been acquitted of a serious criminal offence. As I said in my second reading contribution, there is something unseemly and unsafe about bringing a criminal prosecution against a person and not succeeding—so in the eyes of the law that person is not guilty—but still being able to seek and obtain pervasive orders to restrict that person’s movements and activities. I repeat, in the United Kingdom and Scottish models the prosecuting authorities essentially make a choice between whether they are to bring a criminal prosecution or, if they do not have the evidence, to seek a serious crime prevention order. We think that is an appropriate fork in the road, as it were, and it protects against the agencies of the State being able to oppress individuals whom they suspect of wrong doing.
The Opposition understands that this does not affect a situation where a person is never charged. We also understand that if we are going to have serious crime prevention orders, the objective of which is to disrupt and interfere with the activities of serious organised crime, then much of the utility will be in circumstances where we do not have the evidence to bring a criminal prosecution. If we are going to have these orders that is appropriate, but the Opposition contends that there is an unsafe and unseemly situation created where prosecuting authorities that fail in a criminal court can then come go back for a second go at an individual on the civil basis provided in this bill. Law enforcement authorities should make a clear choice about the direction in which they are going to go; not have two bites at the cherry.
The Hon. ADAM SEARLE ( 20:52 ): by leave: I move Opposition amendments Nos 4 and 5 on sheet C2016-032D in globo:
No. 4 Knowing facilitation required
Page 2, clause 4 (1) (b), line 37. Insert “ knowingly “ after “ the person has “ .
No. 5 Knowing facilitation required
Page 2, clause 4 (1) (c), line 39. Insert “ knowingly “ after “ the person has “ .
These amendments are directed to the definition of being involved in serious crime-related activity. At the moment, if we look at clause 4 of the bill, if someone has engaged in serious crime-related activity, we can accept that that sounds reasonable. However, it also extends to the person having engaged in conduct that has facilitated another person engaging in serious crime-related activity and it does not require that the person does so knowingly. Persons could therefore do something that they have been asked to do with no awareness that their action may facilitate the person who has asked them to do that thing engaging in serious crime-related activity. Clause 4 (1) (c) provides that a person has engaged in conduct that is likely to facilitate serious crime-related activity whether by the person or another person. This is even more tangential. These two subclauses (b) and (c) attenuate, or stretch very thin, the connection between what a person might do and serious criminal activity.
The first category we can understand; it seems sensible and rational if we are to have a regime such as this. But if we are to have subclauses 4 (b) and 4 (c) and persons who are exposed may do things they are not aware of that may be contributing to the commission of serious crimes— if we are to have those provisions or provisions like that—they should be required to do so knowingly. I am sure it is not the intention of the Government or those opposite to make people who are truly innocent subject to serious crime related orders because that would be unseemly. It would be oppression and it would be achieving a totalitarian State. I was never a supporter of totalitarian communism; I think totalitarianism of any kind is a bad thing. This approaches that kind of thing where there is no safeguard.
The safeguard should be that if people are to be exposed to these powerful orders, they must have done something wrong and they must have done so knowing it to be wrong. People should not be caught who might, at the request of people they know, do things that may contribute to the commission of a serious crime but they do not know that—for example, driving persons from A to B at their request when one does not know what they are going to do when they get to place B, or delivering something from one place to another without being aware of what is being delivered. If a person is knowingly engaging in such conduct by all means make them subject to orders of the kind provided for in the legislation, but make sure that there is a level of moral culpability before they are subjected to those orders. That is what this amendment does. The amendment requires that the person who is to be the subject of an application for an SCPO has done these things knowingly.
The Hon. ADAM SEARLE ( 21:01 ): I move Opposition amendment no. 12 on sheet C2016-032D:
No. 12 Serious crime prevention order not to discriminate
Page 4, clause 5. Insert after line 14:
(2) However, the Court must not make a serious crime prevention order against a person if it considers that to do so would constitute discrimination against the person on a ground specified by the Anti-Discrimination Act 1977 .
The Opposition believes it would be a prudent safeguard to make clear that the legislation and any orders made under it are not inconsistent with the provisions of the anti-discrimination laws of this State. I will not enumerate what those protections are; they are significant matters of record. I know it is not the intent of the Government or any agency or arm of government to do the wrong thing. This will provide an extra signpost on the road to make sure that any orders sought and granted under this legislation, when enacted, do not infringe on those traditional legal rights, or if they are that it is one of the bases upon which those orders can be reviewed by the Supreme Court, as provided in the bill. The Opposition believes this would improve the operation and integrity of and public confidence in the regime of serious crime prevention orders. The Government should not in any way be concerned about or frightened of embracing this protective measure.
The Hon. ADAM SEARLE ( 21:06 ): I move Opposition amendment No. 1 on sheet C2016-041:
No. 1 Considerations to be taken int o account when making serious crime prevention order
Page 4, clause 5. Insert after line 14:
(2) In determining whether there are reasonable grounds to believe that the making of the serious crime prevention order would protect the public by preventing, re stricting or disrupting involvement by the person in serious crime related activities, the court must take into account the following matters and may take into account any other matter that it considers relevant:
(a) whether the person previously behaved i n a way that posed a serious risk to public safety,
(b) whether the person:
(i) is, or has been, a member of a declared organisation (within the meaning of the Crimes (Criminal Organisations Control) Act 2012) , or
(ii) is, or has been, subject to a control order under that Act, or
(iii) associates, or has associated, with members of a declared organisation or persons subject to control orders within the meaning of that Act,
(c) if the order is likely to prevent the person from participating in non-violent a dvocacy, protest, dissent or industrial action—the public interest in maintaining freedom to participate in such activities,
(d) whether the person will be prevented from being present at any of the following:
(i) a place of work at which the person is reg ularly employed,
(ii) an educational institution attended by the person,
(iii) a place of worship attended by the person,
(iv) a place at which the person receives a health service or welfare service,
(v) a place at which the person is provided with legal services by any Australian legal practitioners or by any organisations employing or otherwise using one or more Australian legal practitioners to provide such services,
(e) whether the degree of risk of serious crime related activities occurring justifies the imposition of the prohibitions, restrictions, requirements or other provisions to be specified in the order (having regard, in particular, to any legitimate reason the person has to participate in activities that may be covered by the order),
(f) the e xtent to which the making of the order will mitigate any risk to public safety
(g) the extent to which the order is necessary having regard to other measures reasonably available to mitigate the risk.
The reason I move this amendment is, like the previous amendment which dealt with the Anti-Discrimination Act, it provides further guidance for the court in making a serious crime prevention order. I am glad to see that the Deputy Premier, Minister for Justice and Police is here tonight. In his contribution in the other place the Deputy Premier said we should take comfort in the fact that although it is not actually in the legislation and although it is not actually legally binding in this State the counterpart legislation has been interpreted by the United Kingdom [UK] court such that “a serious crime prevention order must address a real risk of future offending behaviour. It must be proportionate and commensurate with that risk”.
As I indicated in my contribution to the second reading debate, the reason why the UK courts have formed that view is because of the presence of the domestic and European human rights law framework, none of which applies in this State. If it is the intention of the Minister and the Government to have the law interpreted in the same way, we need to provide some guidance and some signposts. When one looks at the second bill, which deals with public safety orders, there are a series of guidelines or signposts for the police officer in clause 87R, particularly subclause (2), which sets out a range of things that a police officer must consider in determining whether or not to make a public safety order.
Those are good measures to guide a police officer but none of those signposts assists the courts in determining whether or not to issue a serious crime prevention order. This amendment imports into the serious crime prevention order regime the same considerations that the Minister and his Government think should be in the minds of a police officer in determining whether or not to make a public safety order.
We started our critique of these cognate bills by saying that we should have one integrated set of orders rather than two sets of orders. However, if we are to have two sets of orders they should have the same triggers, the same thresholds and much the same issues should be considered by those making the decision. If these are the sorts of considerations that a senior police officer should have in his or her mind when deciding whether to make a public safety order, there should be the same signposts to assist the court in determining whether it is appropriate in the circumstances to make a serious crime prevention order. The Opposition has used the same drafting and notions for public safety orders that the Government used and says that they should also apply to serious crime prevention orders. Having that commonality of thresholds, themes and signposts would not only improve the operation but also the integrity and public acceptance of these to two highly unusual sets of provisions. I urge the Government to embrace this constructive proposal from the Opposition.
The Hon. ADAM SEARLE ( 21:14 ): I move Opposition amendment No. 20 on sheet C2016-032D:
No. 20 Self-incrimination cannot be required
Page 5, clause 6 (2). Insert after line 2:
(c) to answer questions, or to provide documents or other information, that may incriminate the person or make the person liable to a penalty, or
This amendment is to make clear that the legislation, in providing for serious crime prevention orders, does not intend to infringe on the traditional presumption against self-incrimination. At the moment clause 6 of the legislation provides for what may be in the content of serious crime prevention orders but it says in subsection (2):
… a serious crime prevention order cannot contain provisions that require a person:
(a) to answer questions or provide information orally …
Other matters are dealt with there as well. There is nothing to prevent a serious crime prevention order directing somebody to provide certain answers in writing, apart from the other exceptions such as legal and client privilege, protected confidences if a person is involved in banking businesses and the like. The Opposition assumes that it is not the intention of the Government to abrogate the protection against self-incrimination. We note that this regime is not criminal in nature. Look, for example, at the extreme powers granted to the Crime Commission under the Crime Commission legislation or to the Independent Commission Against Corruption under the ICAC legislation. The right to avoid self-incrimination is dealt with in this way: A person being asked a question may object. They still have to answer, but any answers they give cannot be used in a criminal matter against them. That makes it clear that ultimately the objective of the protection against self-incrimination is preserved and balanced with the public interest of getting the information.
Here the public interest is to disrupt serious and organised crime. We understand that. We assume that it is not the intention to abrogate the right to protection against self-incrimination. If that is the correct understanding, because that protection is imperfectly preserved in the drafting, amendment No. 20 is necessary to ensure that a person’s rights in that respect are not abrogated. If the Government’s view is, “No, we intend to abrogate the right to protection against self-incrimination. We want to be able to require people, on pain of criminal prosecution, a $33,000 fine and up to five years in jail, to tell us everything in writing,” then it should say so explicitly on the record. The drafting of the bill does not properly protect people from self-incrimination or from being required to self-incriminate in the way I have outlined. If that is not the Government’s intention then it should embrace Opposition amendment No. 20.
The Hon. ADAM SEARLE ( 21:22 ): I move Opposition amendment No. 21 on sheet C2016-320D:
No. 21 Serious crime prevention order cannot prevent non-violent advocacy etc
Page 5, clause 6 (2). Insert at the end of line 13:
(f) not to participate in activities that constitute non-violent advocacy, protest, dissent or industrial action.
This deals with ensuring that serious crime prevention orders cannot prevent non-violent advocacy, protest, dissent or industrial action. In the current drafting of schedule 5, new section 87R there is a range of matters that the police officer must take into account in deciding whether or not to make a public safety order. One of them provided for in new section 87R (2) (c) is:
if advocacy, protest, dissent or industrial action is likely to be the primary purpose for the person or persons to whom the order will apply being present at the relevant public event or premises or other area—the public interest in maintaining freedom to participate in such activities…
Then it says in subsection (3):
However, a senior police officer must not make a public safety order that would prohibit a person or class of persons from being present at any public event or premises or other area if:
(a) the officer believes that non-violent advocacy, protest or dissent—
or industrial action—
is likely to be the primary purposes for their presence at the public event or premises or other area …
So it rests very much on what the officer believes. Of course, as outlined in my second reading contribution, once made, except where one of these orders is more than 72 hours in duration, it cannot be appealed to or reviewed by the Supreme Court, or indeed any court. And there is no capability or facility for reviewing, scrutinising or evaluating the information or the basis upon which the senior police officer formed the view that a public safety order should be made. So we think the appeal rights should be liberalised, and of course we will come to that. We also think that serious crime prevention orders, similar to the public safety orders, should not be a backdoor mechanism to interfere with the ordinary rights that people in our society have to engage in activities which at present are lawful, such as non-violent advocacy, protest, dissent or industrial action. We think those are very important matters in civil society. We had a very extensive debate on those matters recently on the Government’s anti-protest laws.
I am not suggesting necessarily that the Government is seeking to use serious crime prevention orders or indeed public safety orders as a backdoor mechanism to confront environmental activists, people fighting for better workplaces or people seeking to protect the environment or simply by demonstrating to raise public awareness of what they regard as important issues. Again, we understand that there may well be a role for unusual and pervasive mechanisms such as serious crime prevention orders. But they have to come with proper checks, balances and safeguards.
Again, if it is not the intention of this Government to interfere with people’s ordinary civic rights to demonstrate, to protest and to raise consciousness about issues and to take public action and to publicly dissent or in the workplace context to take industrial action, pursuant of course to other laws, then that should be spelled out with clarity in the legislation. That will ensure that fallible humans operating the system of serious crime prevention orders in their excitement and in their zeal to protect the community from serious and organised crime do not go too far. So we urge all members to support this amendment, and of course we have a parallel amendment for the other bill, to ensure that these important civic rights are protected.
The Hon. ADAM SEARLE ( 21:38 ): I move Opposition amendment No. 1 on sheet C2016-040:
No. 1 Defence for contravention of serious crime prevention order
Page 5, clause 8. Insert after line 33:
(2) It is a defence to a prosecution for an offence against this section if the defendant prove s that:
(a) the defendant knew certain circumstances existed, and
( b) it was reasonable for the defendant to act as the defendant did in those circumstances.
(3) In determining whether it was reasonable for a defendant to act as the defendant did, the court may take into account the following matters and any other matters that the court considers relevant:
(a) the seriousness of the potential serious crime related activity or activities to which the serious crime prevention order related,
(b) any purpose for which the defendant claims to have been acting,
(c) any authority by which the defendant claims to have been acting.
This is a direct challenge to the Government’s bona fides on these bills. Once a serious crime prevention order is made it is an offence to breach that order, punishable by up to $33,000 against a person or $165,000 against a corporation or in the case of natural person up to five years in jail.
In neither of the bills before the House is a defence provided for. Because the Government has borrowed from the United Kingdom Serious Crime Act 2007, I looked at that legislation to see how the originators of this regime dealt with the situation. Lo and behold, section 50 of the United Kingdom Serious Crime Act 2007 provides for a defence to a breach of the legislation in exactly the same terms as those which I propose here tonight.
If this Government is serious about the United Kingdom model, which they say is fair, reasonable and balanced, and which they say is necessary, let us adopt all of it. Let us not cherrypick the bits that we like—the bits where the rights of citizens and non-citizens are thrown out the window—but provide the whole package, including this defence. This amendment is a real challenge to the bona fides of the Minister and of the Government in relation to their intentions with this legislation.
It would have been easy for the Opposition to say that this legislation is very poor and that it should not be supported but as a responsible Opposition and an alternative Government we have engaged with the very serious public policy issues and we are doing our best to take a bipartisan or cross-partisan approach to these issues to improve the bills so that we have a vigorous and robust series of anti-crime measures which contain safeguards so that their integrity of the provisions and public confidence in the provisions can be improved. This is one of those safeguards. If the United Kingdom model is so good that the Government has borrowed from it, let us take all of it.
The Hon. ADAM SEARLE ( 21:43 ): I move Opposition amendment No. 24 on sheet C2016-032D:
No. 24 Appeals against serious crime prevention orders
Page 7, clause 11 (1)–(3), lines 20–28. Omit all words on those lines. Insert instead:
(1) Each of the following persons may appeal to the Court of Appeal against a decision of the Supreme Court in relation to the making of a serious crime prevention order:
(a) the applicant for the order,
(b) the person against whom the order is made.
(2) An appeal is to be by way of a rehearing as provided by section 75A of the Supreme Court Act 1970 .
(3) The appeal must be made within 28 days after the date on which the decision was made unless the Court of Appeal grants leave for it to be made after that time.
This amendment deals with appeals against serious crime prevention orders. The Government has an appeal mechanism within the legislation found in clause 11. In this respect it is much better than the counterpart bill, which has an appeal mechanism that no-one will ever be able to use. However, the appeal is restricted, as we see in clause 2, to an appeal as of right on a question of law—which is fine—and, with leave, on a question of fact. The Opposition thinks that that is too narrow. The Opposition thinks that a better mechanism would be a rehearing as provided for in section 75A of the Supreme Court Act. Otherwise, the appeal provisions are fine. The appeal mechanism just needs to be made a little bit more flexible than the somewhat narrow version that we have in the bill before us.
The Hon. ADAM SEARLE ( 21:49 ): By leave: I move Opposition amendmentsNo.1 and Nos 14 to 22 on sheet C2016-034D in globo:
No. 1 Appeals available against all public safety orders
Page 13, Schedule 5, proposed section 87P, line 9. Omit all words on those lines.
No. 14 Appeals available against all public safety orders
Page 15, Schedule 5, proposed section 87S (1), lines 38 and 39. Omit “ if the order is (or is to be) in force for a period exceeding 72 hours “ .
No. 15 Appeals available against all public safe ty orders
Page 17, Schedule 5, proposed Division 3, line 28. Omit “ long duration “ .
No. 16 Appeals available against all public safety orders
Page 17, Schedule 5, proposed section 87V, lines 29–31. Omit all words on those lines.
No. 17 Appeals available aga inst all public safety orders
Page 17, Schedule 5, proposed section 87W, line 32. Omit “ long duration “ .
No. 18 Appeals available against all public safety orders
Page 17, Schedule 5, proposed section 87W (1), line 33. Omit “ long duration “ .
No. 19 Appeals a vailable against all public safety orders
Page 17, Schedule 5, proposed section 87W (1) (b), lines 36 and 37. Omit “ (unless the decision operates to reduce the duration of the order to 72 hours or less) “ .
No. 20 Appeals available against all public safety orders
Page 17, Schedule 5, proposed section 87W (2), line 38. Omit “ long duration “ .
No. 21 Appeals available against all public safety orders
Page 17, Schedule 5, proposed section 87W (3), line 41. Omit “ long duration “ .
No. 22 Appeals available against al l public safety orders
Page 18, Schedule 5, proposed section 87X (1), line 2. Omit “ long duration “ .
These amendments would provide a meaningful avenue of appeal against public safety orders. In the legislation as it is currently drafted, while there is an appeal mechanism, it can only be utilised in relation to public safety orders of more than 72 hours in duration. I refer to division 3 and to new sections 87V, 87W, 87X, 87Y and 87Z. If a public safety order is for less than 72 hours, there appears to be no mechanism in the legislation for a person subject to such an order to approach the Supreme Court—or indeed any court—to have the order reviewed or set aside.
It is interesting that, in relation to the making of serious crime prevention orders, the Government says: “The courts should make this order. It is so serious and important that the courts should make the order.” But the public safety orders in the second bill are in many ways more powerful and more pervasive—yet under this bill these would be able to be made not only by the leadership of the NSW Police Force but by police officers of the rank of inspector. The term “senior police officer” is in the bill. I stand to be corrected—if I am wrong, no doubt the Parliamentary Secretary will correct me—but I think inspector is the lowest rank of commissioned police officer in this State. Without wishing to be disrespectful to anyone with the rank of inspector, relatively speaking they are not senior police officers. But this legislation would give officers of that rank and above enormous and pervasive powers to determine whether or not a person is allowed to be at certain places at certain times.
The regime rests on a view formed by the police officer. That view might be right or it might be wrong, but it certainly cannot be reviewed, scrutinised or evaluated—because the person subject to it will not get notified that the police are considering making an order and will not have the right to be heard before any order is made. They are bound by the order from the time they are presented with a copy of it or, in the case of urgent orders, from the time they have the order communicated to them in the terms set out for urgent orders in the bill, in new section 87T.
We think it is important to have a proper appeal mechanism. If we are to have such serious restrictions on people’s liberty and their right to be at certain places and do certain things, the least the Parliament can do is provide a meaningful appeal mechanism. What we have here is a complete joke.
The appeal mechanism applies only to long duration public safety orders. It might be an error of drafting, or maybe I have not read it properly, but I cannot see how one can make a public safety order for more than 72 hours. Indeed, new section 87S provides that a public safety order can last for no longer than 72 hours. So here we have an elaborate charade.
When the bill was introduced the Government said, “Do not worry, we have court supervision so if you do not like it you can appeal in certain circumstances.” But this appeal mechanism cannot be used. From the very informative briefing provided by the Justice department, for which I thank the police Minister, we know that the bill contains nothing to cover a situation where consecutive orders are made against a person, all of which are less than 72 hours in duration but which have the effect of restricting a person’s movements and activities every Friday or Saturday or each day of the week. As long as they are separate and distinct orders there is no general provision to wrap them up because the 72 hours applies only to an individual order, not to a consecutive series of orders.
On my reading of the legislation, if the police were really concerned about the activities of someone they could have a series of orders amounting to hundreds of hours and that person could never have those orders reviewed by the Supreme Court. I do not wish to be conspiratorial but it was the clear advice of the departmental officers that that could happen and the appeal mechanism would never be engaged. If that is correct, we have an appeal mechanism that is designed not to work and that will never be used. So we have these powerful orders that relatively junior police officers can issue against a person based on that police officer’s belief, which may or may not be correct but which certainly cannot be scrutinised or reviewed, and there is nothing the person subject to it can do. I understand that the objective is to ensure public safety and to reduce the criminality and activities of criminals. The Opposition shares that laudable aim but if we are to have these novel and powerful orders—in this instance they are issued by the police, not by the courts—the courts must be able to review them. There is no effective appeal or review mechanism in this bill, and there should be.
The Hon. ADAM SEARLE ( 22:12 ): I move amendment No. 2 on sheet C2016-034D:
No. 2 Only Commissioner or Deputy or Assistant Commissioner can make public safety orders
Page 13, Schedule 5, proposed section 87P, lines 14 and 15. Omit all words on those lines. Insert instead:
senior police officer means the Commissioner of Police or a Deputy or Assistant Commissioner of Police.
This amendment would restrict the police officers who could make public safety orders from the present cohort of inspector and above to only the commissioner, the deputy or assistant commissioner. The Opposition proposes this amendment as a safeguard. The rank of inspector is too low to be making such an important and powerful set of orders. If such orders are to be available to the police to assist with dealing with or preventing criminal activity they should be reserved only for the most senior members of the Police Force. I elaborated on the reasons for this in my second reading contribution and I will not repeat those arguments here.
The Hon. ADAM SEARLE ( 22:15 ): By leave: I move Opposition amendments Nos 3, 5, 7, 9 and 13 on sheet C2016-034D in globo:
No. 3 Serious risk of crime related activity required
Page 13, Schedule 5, proposed section 87P. Insert after line 18:
serious crime related activity has the same meaning as in the Crimes (Serious Crime Prevention Orders) Act 2016 .
No. 5 Serious risk of crime related activity required
Page 13, Schedule 5, proposed sec tion 87R (1), lines 29-33. Omit all words on those lines. Insert instead:
(1) A senior police officer may make a public safety order only if:
(a) the presence of the person (or class of persons) concerned at the public event or premises or other area concerned poses a serious risk that the person or persons will engage in or cause serious crime related activity, and
(b) the making of the order is reasonably necessary in the circumstances.
No. 7 Serious risk of crime related activity required
Page 14, Schedule 5, proposed section 87R (2) (a), lines 3-6. Omit all words on those lines. Insert instead:
(a) whether the person or persons to whom the order will apply have a history of engaging in serious crime related activity,
No. 9 Serious risk of crime related activity required
Page 14, Schedule 5, proposed section 87R (2) (f), lines 36 and 37. Omit “to public safety or security “. Insert instead “of persons engaging in or causing serious crime related activity “.
No. 13 Serious risk of crime related activity required
Page 15, Schedule 5, proposed section 87R (5) and (6), lines 7–18. Omit all words on those lines.
At the moment we think the threshold for making a public safety order is too low. It is triggered by a senior police officer’s concern that there may be a risk to public safety and security, which, as defined in the bill, covers all manner of ills from property damage at the low end through to serious injury or death of another person at the high end. It covers quite a broad range of potential ills. Having the threshold so low as to be triggered by property damage, for example, and given the pervasive and powerful nature of these orders, we think a more restricted range of issues only should be able to be dealt with or triggered by public safety orders. Again, we do not understand why different thresholds, triggers and rules apply to public safety orders as opposed to serious crime prevention orders. We think the trigger for each should be essentially the same. We have argued for a single regime of orders.
Therefore, we think the legislation should be amended so that a public safety order may only be triggered by the apprehension that there is serious crime-related activity as provided for in the other legislation so that there is greater consistency between the two new laws to make sure that the legislation is directed at very serious matters that warrant the exceptional measures that are under consideration by the Parliament. Using public safety orders to deal with property damage would seem to be excessive, in our view. Only really serious criminal activity should be the subject of either regime of orders.
The Hon. ADAM SEARLE ( 22:24 ): By leave: I move Opposition amendments Nos 4, 11 and 24 on sheet C2016-034D in globo:
No. 4 Public safety order cannot be made against children or other vulnerable persons
Page 13, Schedule 5, proposed section 87P. Insert before line 19:
vulnerable person —see section 87Q.
87Q Meaning of “ vulnerable person “
(1) In this Part, a vulnerable person means a person who falls into any one or more of the following categories:
(a) persons who are under the age of 18 years,
(b) persons who have impaired intellectual functioning,
(c) persons who have impaired physical functioning.
(2) For the purposes of this Part, a person who has impaired physical functioning is taken not to have impaired physical functioning if the senior police officer proposing to make a public sa fety order against the person reasonably believes that the person’ s impairment is so minor that the person will not be significantly disadvant aged with respect to the person’ s ability to comply with the proposed order (in comparison with members of the community generally).
(3) In this section:
impaired intellectual functioning , in relation to a person, means:
(a) a total or partial loss of the person’s mental functions, or
(b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or
(c) a disorder, illness or disease that affects the person ‘ s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.
impaired physical functioning , in relation to a person, means:
(a) a total or partial loss of the person’ s bodily functions or of part of a person’ s body, or
(b) a presence in the person’ s body of organisms causing or capable of causing disease or illness, or
(c) a malfunction, malformation or dis f igurement of part of the person’ s body.
No. 11 Public safety order cannot be made against children or other vulnerable persons
Page 14, Schedule 5, proposed section 87R (3). Insert after line 48:
(c) the order would apply to any vulnerable persons, or
No. 24 Public safety order cannot be made against children or other vulnerable persons
Page 20, Schedule 5, proposed section 87ZC (2), lines 1–8. Omit all words on those lines.
These amendments would prohibit the making of a public safety order against children or other vulnerable persons as defined in new section 87Q, which is persons under the age of 18, persons who have impaired intellectual functioning and persons who have impaired physical functioning. We understand that there are intended to be differences between serious crime prevention orders and public safety orders, but we note that the serious crime prevention orders apply only to persons aged over 18—that is, adults. We have not heard from the Government any substantial rationale as to why the pervasive and strong powers provided for in connection with the proposed public safety orders need to apply to children or to persons with impaired intellectual or physical functioning.
We note that there are special provisions for those persons in new section 87T (2) and (3) but, notwithstanding the reasons advanced in support of public safety orders, the Government has not explained why it is necessary for these vulnerable persons to be subject to these orders. We think that is extreme. We do not see the rationale for it. We ask the Government to accept our amendments. It cannot be the case that it is necessary to have these orders in connection with these persons. This small group of persons should be carved out of the legislation, as persons under the age of 18 are carved out from the application of serious crime prevention orders. It should be remembered that serious crime prevention orders are pervasive and go not only to persons who are directly engaging in serious crime-related activity but to persons who are facilitating or likely to facilitate such activities whether or not they are even aware of it. If that extraordinary regime does not apply to people under 18, why then should this? We think it is an overreach and that the Parliament should ask the Government to take one step back and provide this small but important safeguard.
The Hon. ADAM SEARLE ( 22:32 ): I note the comments from the Parliamentary Secretary about the safeguards in place for vulnerable persons. But of course there is a fundamental flaw with his analysis and his commitments to the Chamber: There is no review mechanism. All of these are not complied with substantially or the reasons that are advanced in the notification to the parent or guardian are completely fallacious and spurious. It does not prevent the order from being made. It is a non-safeguard because there is no capacity to review it or have it reviewed by a court. Section 87T (2) states:
If the senior police officer considers that a person to whom the order applies is a person under the age of 18 years … the officer must ensure that the order and notification are also served … on a parent or guardian …
Well, so what? Instead of just being served on the person it will be served on a parent or guardian. The parent or guardian of the physically or intellectually impaired person presumably then has to have the shared responsibility of making sure their child or the person they are the guardian of does not breach the order, if of course it is reasonably practicable to do so. These safeguards are merely a notification in writing, specifying dates and setting out the reasons. It does not mean the reasons have to be good, cogent, sound, rational or based in fact rather than prejudice, supposition or completely erroneous material. There is no rigour, no probity and no discipline in the regime of orders because no-one can review it.
Another copper could, of course—the same copper or a more senior copper. But there is no independent scrutiny by the courts. This means, human beings being what they are, that there is a serious risk of laziness and of making decisions on a weak basis or premise. I know that the police are dedicated to protecting the public, and they will err on the side of caution and of not taking risks. Therefore, the absence of supervision by the courts of police actions in this regard is a serious failure in the regime proposed.
I do not say this by way of criticism of the Police Force or its members. Rather it is the Government, and this Parliament if this bill is allowed to pass as it stands, which is letting down our serving officers by not providing proper, systemic support for them in the role they will play in determining whether or not to make orders and in what terms. It would actually assist members of the Police Force in the execution of their duties to have that independent scrutiny to provide them with that additional support and rigor and to provide integrity to the scheme.
It is vitally important that, when we enact unusual measures like this with the objective of protecting the public, we do not unwittingly create a situation where members of the public are themselves adversely impacted. I think when we are dealing with young people and people who are impaired, whether intellectually or physically, special care needs to be taken. With all due respect to the Parliamentary Secretary, the bill in its current form does not do that. The mere obligation to provide additional notification to additional people containing information does not actually, with respect, protect those persons.
People with intellectual impairment may not fully understand the terms of the order that they are subject to. It is served on their guardian or parent, who no doubt will do their best to ensure their child or ward does not breach the terms of the order. But it is a bit hard to make sure that happens. This is an extremely unrealistic and very dangerous proposal, if we do not take the precautionary step pleaded for by the Opposition. I really ask members to embrace this—not to weaken the regime but rather to strengthen it and to give the public greater confidence that there will not be excess, overreach or innocent people adversely impacted.
The Hon. ADAM SEARLE: I move Opposition amendment No. 6 on sheet C2016-034D:
No. 6 Right to be heard before public safety order is made
Page 13, s chedule 5, proposed section 87R. Insert before line 41:
(2) A senior police officer must not make a public safety order that applies to a person unless the officer has given the person a reasonable opportunity to be heard about whether the order should be made unless the person cannot be contacted following a reasonable attempt to do so. It is suf ficient compliance with this subsection if the person is afforded the opportunity to make written submissions.
This amendment meets one of our criticisms that people will not be given the opportunity to be heard before the police officer makes an order. The assumptions on which the police officer is acting or will act will never be the subject of review and will never be tested on the way through. It seems an extraordinary proposition that such powerful orders would be able to be made restricting the rights of people to go places at certain times, to do things or to be at events or in locations without even being able to be heard on the matter. At the very least people should be given the opportunity to be heard by the police officers before such an order is made.
The Hon. ADAM SEARLE ( 22:49 ): By leave: I move Opposition amendments Nos 8 and 10 on sheet C2016-034D in globo:
No. 8 Public safety order cannot prevent non-violent advocacy etc
Page 14, Schedule 5, proposed section 87R (2) (c), lines 15–18. Omit all words on those lines.
No. 10 Public safety order cannot prevent non-violen t advocacy etc
Page 14, Schedule 5, proposed section 87R (3) (a) and (b), lines 43–48. Omit all words on those lines. Insert instead:
(a) non-violent advocacy, protest, dissent or industrial action is likely to be the primary purpose for their presence at the public event or premises or other area, or
These amendments will ensure that public safety orders cannot be used as a method to prevent non-violent advocacy, protest or dissent or to prevent persons from engaging in industrial disputes. I know that those matters are adverted to in new section 87R (2) (c) and new section 87R (3). Indeed, a senior police officer is enjoined to not make a public safety order if the officer believes that non-violent advocacy, protest, dissent or industrial action is likely to be the primary purpose of a person’s presence at the event, premises or other area.
However, the problem with the safeguard, if it be a safeguard, is that it rests on what the police officer believes. If the police officer believes that those gatherings are really for the purpose of engaging in one of the things that are proscribed by the legislation—damage to property, destruction of property, serious injury, death or any of those things that are included in the definition “serious risk to public safety or security”—the officer may still make a public safety order notwithstanding the fact that the real and substantial reason for persons gathering together is for those other lawful purposes of non-violent advocacy, protest, dissent or industrial action.
We debated at length not so long ago the anti-protest laws. Many persons in this Chamber and in the community felt it was an unwarranted infringement of people’s existing rights in a civil society to engage in those activities. Ensuring that there is proper space for those activities is a cornerstone of our democracy. I am sure it is not the intention of the Government, through the means of public safety orders, to infringe those rights, but such protections as are sketchily provided in new section 87R do not provide the necessary guarantees. The Opposition proposes amendments Nos 8 and 10 to put the matter beyond doubt.
The Hon. ADAM SEARLE ( 23:03 ): I move Opposition amendment No. 12 on sheet C2016-34D:
No. 12 Public safety order cannot be discriminatory
Page 14, Schedule 5, proposed section 87R (3). Insert after line 48:
(c) the making of the order would constitute discrimination against any of them on a ground specified by the Anti-Discrimination Act 1977 , or
This amendment would ensure that it would not be possible for orders made under this legislation to contravene the Anti-Discrimination Act.
The Hon. ADAM SEARLE ( 23:07 ): I move Opposition amendment No. 23 on sheet C2016-034D:
No. 23 Reasonable excuse defence for contravention of public safety order
Page 19, proposed section 87ZA. Insert after line 15:
(2) If a public safety order prohibits a person from entering, or being present at, any specified premises or other specified area, it is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had a reasonable excuse for enterin g, or being present at, the specified premises or area.
This amendment would provide a defence to a person facing a charge for breaching a public safety order. It is similar in its intent to the amendment we moved in relation to the Crimes (Serious Crime Prevention Orders) Bill 2016. It will provide a clear statutory basis that there is a defence to a breach of a public safety order. I apprehend that the Government will say that this right exists even though it is not in the legislation.
The Hon. Lynda Voltz: Don’t be too sure about that, Adam.
The Hon. ADAM SEARLE: I am not too sure. Again, I invite the Parliamentary Secretary to show me where it is because I would be very happy to be wrong about that. But perhaps it would be of more interest to members if the Parliamentary Secretary could outline the legal basis upon which he says the defence exists independently of it being in the legislation, just so we can have more comfort that the Government is not going to accept this amendment.
If it is in fact the Government’s intention that there would be a reasonable excuse defence for breaching a public safety order and there is a sound legal basis for the Government having that view, I for one would be content. But I would like to understand where such a defence would arise. It is the case that even in relation to minor criminal offences the reasonable excuse does not apply any longer, having been abrogated by those offences taking statutory form and no longer being common law. This is a statutory regime and I would be interested to understand how what was a common law offence would apply to a new statutory provision such as this.