CRIMES (SERIOUS CRIME PREVENTION ORDERS) BILL 2016; CRIMINAL LEGISLATION AMENDMENT (ORGANISED CRIME AND PUBLIC SAFETY) BILL 2016

4 May 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 16:16 ): I lead for the Opposition in debate on the Crimes (Serious Crime Prevention Orders) Bill 2016 and the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016, which are being debated as cognate bills. The NSW Labor Opposition does not support these bills in their current form. We have serious concerns about the need for them, about the bona fides of the Government in how it has embarked on this exercise, about the far-reaching nature of the provisions, and about the lack of safeguards to protect the public and to ensure the integrity and rigour of decisions that will be made under these enactments. The Government made no effort to secure the support of the Opposition before proceeding to introduce this legislation. It is now clear beyond argument, given the controversy canvassed in the debate in the other place, that in developing the bills the ministry took no steps to consult with any of the expert bodies with knowledge and insight into this area of law and policy outside government.

However, as befits a responsible Opposition, a responsible alternative government of this State, we will engage with the serious public policy matters dealt with in the legislation and put forward sensible, carefully considered amendments that meet those concerns. The question is whether this Government has the maturity and good sense to take a bipartisan approach to the very serious issue of combating organised crime. Incredibly, this legislation proposes not one but two new systems of orders—serious crime prevention orders, and public safety orders to be issued by police. This will be in addition to orders already able to be made under other New South Wales and Commonwealth criminal laws, as well as the anti-consorting laws put in place by the O’Farrell Government.

New South Wales Labor is resolutely in support of laws to combat serious and organised crime. We have no difficulty with giving law enforcement agencies, the police and the NSW Crime Commission, the resources and the laws they need to protect the community from the scourge of criminal activity. After all, it was a Labor Government that created the NSW Crime Commission. Since the 1980s New South Wales has had two criminal asset confiscation laws—one civil based, now the Criminal Assets Recovery Act 1990, and the other conviction based, the Confiscation of Proceeds Act 1989. The process of constructing laws of this nature was commenced by a Labor Government with the Crimes Confiscation of Profits Act 1985.

In 2006, section 93T was put into the Crimes Act by a Labor Government, making it an offence for a person to participate in a criminal group. These provisions were overhauled in 2012, introducing new offences which Labor did not oppose. In 2009 the New South Wales Labor Government introduced the Crimes (Criminal Organisations Control) Act 2009 to meet the challenge posed for law enforcement bodies by bodies such as outlaw motorcycle gangs. After the High Court invalidated that legislation in Wainohu v New South Wales, Labor did not obstruct the efforts of the O’Farrell Government to enact the Crimes (Criminal Organisations Control) Act and the further amendments made in 2013. We understand, however, that that legislation has not been used by the present Government despite the hoopla and urgency that surrounded the overhaul of the legislation.

There was no consultation with legal or professional bodies, community groups or law reform agencies prior to the Government embarking on these bills. I note that the Law Society of NSW and the NSW Bar Association offer the observation that the legislation may well infringe the rule laid down by the High Court in Kable v DPP in that it represents a contradiction to the fundamental aspects of judicial power and that judicial process has to be beyond the party of the Parliament to enact. The fact is that no evidence or case of any substance has been presented by the Government as to the inadequacy of existing laws and the criminal justice system in dealing with the issues to which the legislation is aimed. There are lots of assertions, and no doubt this legislation would be very useful for law enforcement agencies, but whether it is necessary is a different matter.

The NSW Bar Association, the Law Society of NSW, the New South Wales chapter of the International Commission of Jurists and many other relevant organisations were not consulted by the Government and are strongly opposed to the bills. One member of this Chamber said they have received a communication from the Police Association about the bills. I do not believe the New South Wales Opposition has received any communication from the Police Association, and in my brief conversation with the association it said it had not been consulted about the legislation and did not seem particularly fussed one way or another whether the legislation was enacted. I do not seek to verbal the association but usually when that body wants something it is not backwards in coming forward to either side of politics.

This legislation comes soon after this Government’s anti-protest laws, which, in comparison, now seem very minor. A trend exists in this Government towards disproportionate and extraordinary laws that seriously erode the rule of law and the fundamentals of our system of legal rights and processes. For example, the ability of public safety orders to be used to crack down on all forms of protest, non-violent advocacy and even industrial disputes is a real and present danger, notwithstanding the window dressing in the second bill that is said to avert that problem. It is no wonder the Government has not yet brought into force and effected its anti-protest laws; something much more pervasive, something much more sinister, is coming down the pipeline. If the Government is serious about not wishing to impede non-violent protest, advocacy and industrial disputes it should accept our amendments to put that beyond any doubt. Where Parliament determines that authorities need unusual powers to deal with serious and pervasive issues such as organised crime or terrorism, they must be subject to judicial oversight and other checks and balances to protect against error and excesses in order to protect the community, and that is what our amendments seek to do.

I turn now to the details of the two bills. The Crimes (Serious Crime Prevention Orders) Bill provides for the making of serious crime prevention orders but goes well beyond the comparable legislation in Great Britain and Scotland. There are also fewer safeguards in the New South Wales bill than exist in the United Kingdom legislation. In New South Wales the power to seek such orders will be conferred on the Commissioner of Police and the Crime Commissioner as well as the Director of Public Prosecutions. Persons who are engaged in the front line of law enforcement, not the independent prosecutor but the policeman, will also be given the ability to make those applications. That does not happen in the United Kingdom. Under the United Kingdom model only the independent Director of Public Prosecutions of England and Wales and of Northern Ireland and the office holders of like positions, such as the Director of Serious Fraud and the Director of Revenue and Customs, may bring such an application, which is a very important distinction.

The United Kingdom model also occurs in the context of very strong domestic human rights legislation, the Human Rights Act 1998 and the European human rights framework, which comprises the Convention for the Protection of Human Rights and Fundamental Freedoms and, of course, the European Court of Human Rights, both of which provide protection for ordinary citizens. There are no comparable protections in New South Wales or Australian law. An SCPO will be able to be issued by the Supreme Court or the District Court following a conviction on the application of the Crime Commissioner, the Office of the Director of Public Prosecutions or the Commissioner of Police. The court will be able to issue the order where satisfied on the balance of probabilities that a person or business is involved in serious crime-related activity or, as I indicated, by the District or Supreme courts following a conviction for a serious offence. However, an SCPO will be able to be issued if a person is not charged with any criminal offence and even if they have been acquitted of a criminal offence, even if the fact situation supporting the SCPO is substantially the same as the criminal charge.

In the United Kingdom the guidelines for the Crown Prosecution Service make it clear that if there is evidence to support a criminal prosecution, that should be pursued. An SCPO should be pursued only where there is no real prospect of a criminal conviction. The proposed New South Wales model has no such protection, giving rise to a real risk that over time law enforcement will use the much easier civil process of an SCPO to pursue often difficult criminal trials with the need to prove matters beyond reasonable doubt. This would potentially endanger public safety and would be contrary to the public interest. Dangerously, the New South Wales bill also commits the authorities to pursue an SCPO even where a person has been acquitted of criminal charges and, as I indicated earlier, because of the prosecution guidelines this cannot occur in the United Kingdom as a matter of administrative practice; it is not in the Serious Crimes Bill 2007 but it is in the practice of the prosecution service. That safeguard does not exist in this State and that is why this legislation in its current form is so dangerous.

An SCPO would include prohibitions and requirements that a court considers appropriate to prevent, restrict or disrupt involvement by the person in a serious crime. Clause 6 provides some protections by listing things that cannot be included in an SCPO, including protection for legal professional privilege, confidential information and special protections for banking businesses, which, of course, is similar to the United Kingdom model. Importantly, there is no clear protection against self-incrimination.

There is the ability to demand things from people in writing under this legislation. For example, in both the legislation for the Independent Commission Against Corruption and the Crime Commission in cases where the issue of self-incrimination arises, a person may object to answering questions; they still have to answer but their answers then cannot be used in any criminal trial against them. It can only be used for the purposes for which the information is sought. Given that these are not criminal trial processes that we are dealing with in this legislation, there should be at least equivalent protection against the risk of self-incrimination. That is absent from the Government’s package.

Mr David Shoebridge: You’re such a bleeding heart, Adam.

The Hon. ADAM SEARLE: I acknowledge that interjection, but it is not true. An SCPO would last for a maximum of five years and a breach would be punishable for up to five years imprisonment and/or a fine of 300 penalty units, which is $33,000 for an individual, and 1,500 penalty points or $165,000 for a corporation. Importantly, the legislation, as it stands, contains no defence to these charges. There is no defence under either of these bills. “Serious offence” and “serious crime-related activity” are defined as they are in the Criminal Assets Recovery Act. However, this legislation goes further with an additional definition of “involved in serious crime‑related activity”, which captures not only the engaging in serious crime-related activity but also conduct that facilitated another person engaging in such activity and conduct that is likely to facilitate another person engaging in serious crime-related activity.

In considering an application for an SCPO a court may rely upon hearsay evidence. However, the respondent will be put on notice and served with the material. The provision that deals with hearsay evidence in this legislation clearly abrogates the existing protections against the admission of hearsay evidence. Hearsay evidence can be admitted in other trials in accordance with the terms of the Evidence Act but this abrogates those protections. It is quite clear that the intention is to remove the hearsay rule; there is no doubt about that.

I note the contribution of Mr Henskens, SC, in the other place regarding hearsay evidence. As I indicated, there were a number of exceptions to the prohibition of hearsay evidence, as he points out, but they are in the Evidence Act and they replicate the tests that evolved in the common law, with some refinements and additions. This bill abrogates the rule against hearsay evidence in a most serious way without justification. I also note the contribution of that honourable member on the subject of the nature of the orders themselves. The member for Ku-ring-gai makes his observations in the context of the most extraordinary attack on the NSW Bar Association of which both he and I are members and on his current president, Noel Hutley, SC. Such an attack is not only unwarranted but unworthy of a member of this Parliament.

I note also that the honourable member in the other place made a reference to the judgement of the English Court of Appeal Criminal Division in R v Hancox and Another as authority for the proposition that such orders are “not an addition or alternative form of sentence. It is not designed to punish”. Perhaps he forgot the reason the court reached this view. It was not due to the terms of the legislation but the fact it is subject to the European Convention on Human Rights. Paragraph [10] of page 540 of that judgement states:

“The necessity for orders to be proportionate also follows from the fact that they will almost inevitably engage article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 … [The legislation not only requires the orders be made according to law but] it requires that they be proportionate: see authoritative expression in EB (Kosovo) v Secretary of State for the Home D ept [2008] 4 All ER 28 at [7]”

The legislation—the Serious Crime Act 2007 (UK)—only requires that any order be “appropriate” and be made according to law. It is the Europe-wide human rights framework that constrains the operation of that legislation to ensure—as the court put it at page 541, paragraph [10]—that “the provisions of the order must be commensurate with the risk”. There is no such requirement in this legislation. As I mentioned at the outset, there is no human rights or other legal safeguard that will provide the same rigour and proportionality in any orders that are sought if the legislation is made in its current form. Intriguingly, there is no counterpart in the SCPO regime proposed to clause 87R (2) (e), (f) and (g) which will apply to the public safety order regime. It is there for the public safety order regime as an important safeguard but it is not present in the SCPOs. I am looking forward to the Government’s answer on that.

Clause 11 provides for a right of appeal to the Court of Appeal on a point of law but a restricted appeal on fact. As it would be an appeal from a discretionary decision the scope of such appeal rights are of course very narrow. An applicant has to establish that the judge made an error in the exercise of his or her discretion in accordance with the rules laid down in House v The King, which is a very narrow and difficult appeal right. Where a company is convicted of breaching an order, an application may be made to the Supreme Court to wind up the company if the applicant considers that it is in the public interest to do so. The Supreme Court may make an order to wind up a company where the company has been convicted and it is just and equitable to do so. We have no objections to that.

The Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 is a more serious and sinister piece of work. It amends a number of other Acts. The Opposition is concerned only with schedule 5, which makes amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The amendments to the Law Enforcement (Powers and Responsibilities) Act will permit a senior police officer, defined as the rank of inspector or above—and I note that an inspector, I think, is the lowest rank of commissioned police officer in New South Wales—to issue a public safety order preventing a person from attending a place or event for a limited period if the officer is satisfied they would pose a serious risk to public safety or security. They are lifted from the equivalent South Australian laws, the Serious and Organised Crime Control Act 2008, part 5 of section 23, but without the safeguards found in that legislation.

However, while a SCPO requires someone to have engaged in serious criminal activity, there is a very low threshold for a person to be made subject to a PSO; only the satisfaction of the relevant police officer that a person’s presence at a particular location and time would pose a serious risk to public safe and or security—but this is widely defined to cover anything from property damage to the serious injury or death of a person. It has a very wide scope but a very low threshold. When dealing with what it takes to satisfy an officer, one could look at the High Court decision in George v Rockett in 1990. It is quite clear that “the assent of belief is given on more slender evidence than proof”. It is a very low threshold both as to the level of satisfaction needed for a police officer and the danger that will trigger the ability to order a PSO. 

A PSO can last for up to 72 hours but where the order relates to an event that occurs over a period longer than 72 hours, the order will last for the duration of the event. If an order lasts for more than 72 hours, a person subject to it can appeal the decision to a single judge of the Supreme Court: If the order is for less than 72 hours, there is no capacity for any review or challenge to the order. There is no right to be heard before any order is made. Not only is there no capacity to approach the court, on the face of the legislation there is not even the capacity for a more senior officer to review the appropriateness of the order.

However, there is provision to issue multiple orders for a series of events, such as consecutive Saturday nights, which appears to provide a way to bypass the time restriction without engaging the appeal rights. In fact, there is nothing to prevent consecutive 72 hours public safety orders being placed on a person, one after the other, week in, week out, indefinitely, as long as there are separate and distinct orders, and no capacity for this to be reviewed by a court or any other body.

While a proposed SCPO can apply only to persons aged 18 or over, a PSO can apply to persons aged under 18 years and to persons with impaired intellectual functioning. I refer of course to clause 87T (2). This is pretty low even by the standards of the Coalition parties. In his second reading speech the police Minister claimed it as a protection for non-violent advocacy protest assent or industrial action in the legislation found in clause 87R (3) and other places. However, the drafting makes it clear that such a protection rests on a police officer’s belief that these are likely to be the primary purpose of a person’s presence at a particular location. If the officer believes that the primary purpose is for a different purpose, an order may still be made in accordance with clause 87R, endangering the capability of other law-abiding citizens to conduct a non-violent protest advocacy or indeed industrial disputes.

I note the excellent and high-quality submissions made by the NSW Law Society, the Society of Labor Lawyers, the Council for Civil Liberties and of course that radical, left-wing outfit—and I use the term sarcastically—the NSW Bar Association. I urge all honourable members to read and reflect on the contents of those submissions, which I will not read because I note honourable members in debate in the other place did so at great length. There is insufficient time here to do justice to their arguments and the material they provide. It should give this House pause for thought. Yes, let us give the Crime Commission and the police the tools to combat serious and organised crime, but let us do so with proper safeguards.

I serve on the parliamentary oversight committee for the NSW Crime Commission, among other bodies, and I note that it is quite clear that what we see here in the legislation is not what was originally conceived for public safety orders. The safeguards contained in the overseas counterpart are absent here so something clearly has been lost in the translation in terms of the serious crime prevention orders.

In particular, the New South Wales Bar Association is of the view that the bill confers very broad and far-reaching powers on the police and creates a real danger of arbitrary and excessive interference with the liberty and freedoms of persons in this State for a number of reasons, some of which I have outlined. I will touch on some that I have not yet outlined. Because there is no applicant for a public safety order, there is no testing of or contradiction of the material relied upon by the senior police officer in making a PSO and there is no opportunity for the person to be heard. A PSO may be made in relation to children and people with impaired intellectual functioning. The bill is silent as to what might constitute a class of persons for the purpose of the power to make a PSO. The concept of an area to which a PSO can apply is also not defined and is unconfined. There is no upper limit on the duration of a public safety order. In many cases the person the subject of an order will have no means of knowing the basis upon which the senior police officer has reached the satisfaction required by 87R.

While there is a right of appeal to the Supreme Court in relation to a PSO, as I indicated, that is a fairly illusory right because almost no PSOs longer than 72 hours will be made. The Bar Association submission contains a range of other observations, as does the Law Society submission, and members should familiarise themselves with those observations. One point is common to views of the legal expert bodies and that is that the constitutional validity of aspects of the bills must be regarded as doubtful. This is because, in the case of a PSO, the Supreme Court is required to stand in the shoes of the original decision-maker, a senior police officer, and make what the court considers to be the correct and preferable decision. That is a non-judicial function that is substantially incompatible with the functions of the Supreme Court of a State. This brings to mind not only the reasoning of the High Court in Kable but also in the judgement striking down the original New South Wales anti‑bikie legislation in Wainohu. In this bill the Supreme Court is enlisted in implementing the decisions of the executive in proceedings in which there is an inherent lack of fairness between the parties and in which the commissioner retains a level of control.

I note that while the Minister for Justice and Police seeks to assure the Parliament that there are no problems with the constitutional validity of the proposals he does not set out any basis upon which we might derive that comfort. Given the very cogent reasoning provided by the New South Wales Bar Association, there must be real doubt about the validity of the proposed power to make public safety orders in its applications to individuals or groups that are exercising their implied constitutional freedom of communication about government and political matters, notwithstanding the content and operation of the proposed section 87R (3) (a). These observations are also made by the Bar Association and other bodies in relation to the proposed serious crime prevention order regime. I will not touch on the aspects of the legislation with which the Opposition has no difficulties.

I will now address the speech in reply given in the other place by the parliamentary author of the bills, the Deputy Premier and Minister for Justice and Police, Mr Troy Grant, MP. While acknowledging the concerns that have been raised about whether there are sufficient safeguards in the bills, he said:

The Attorney General’s contribution should go a significant way to … allaying concerns …

Sadly, having read the Attorney General’s contribution, I must say that the reverse is the case. This is a very sad Attorney General. It gives me no pleasure to say it, but she does not have the confidence of either the legal profession or the judiciary. The contribution she made to the debate in the other place may disclose why this is so. Her contribution signally failed to address the serious shortcomings in the legislation outlined by the expert legal bodies or in the debate in the other place. Furthermore, the office has been fundamentally compromised by being subsumed into the Department of Justice. In all previous governments, new law enforcement measures would be subject to the scrutiny of an alternative expert agency. The creative tension at the very heart of all previous Government policy on law and justice, whether we are discussing police measures being critiqued by the former Attorney General’s Department or new law reform measures being challenged by the NSW Police Force and the police ministry, has now gone. The Attorney General is the junior Minister in the agency, which may explain a lot about the content of the bills and the lack of safeguards.

I return to the speech in reply by the Deputy Premier. He was critical of my colleague in the other place the member for Charlestown for her contribution and her request for examples of where the orders proposed in the bills are necessary. He indicated that his office had supplied me and my colleague Mr Guy Zangari, MP, shadow Minister for Justice and Police, with those details when he briefed us. I had thought, perhaps foolishly, that the information supplied in the context of that briefing was confidential. We respected that confidence. But apparently, according to the Deputy Premier, there was no confidentiality. In that case, I am happy to inform this House that the examples given in connection with the public safety orders were entirely hypothetical. We had asked for some real-life examples, even if anonymous, of where the authorities believed that PSOs were necessary. We were provided with only hypothetical examples of where they may be able to be used. No information was supplied to us as to why, in those hypothetical examples, existing legal mechanisms available to the police or to the Crime Commission were not able to address the situation.

In connection with the serious crime prevention order regime three examples were provided, apparently from real life, and for that reason I will not outline the situations. Again, there was no information supplied as to why the existing law could not deal with those situations. I accept that these bills would make the task of the police and the Crime Commission a lot easier. But, as I indicated earlier, that is very different from saying that they are actually necessary. The Government has not discharged its burden of showing to the Parliament why this legislation is necessary. The Government has not provided any substantial basis for the measures contained in these bills other than that they would increase the powers available to the authorities. 

In a democratic society that should not be a sufficient basis for sweeping new law enforcement powers, particularly those with grossly inadequate safeguards and, in our view, no real supervision by the independent courts of our State. I know that SCPOs will be made by the courts, but the basis upon which courts may do so is not sufficiently protective of the rights of individual citizens. This was strongly reinforced by the briefing we received from officials in the Department of Justice. Despite our requests, they—the subject matter experts employed in the key government department responsible—could not offer us any practical or policy rationale for the measures in the bills. The only reason being advanced by the Government, not by the public servants, is that this was a commitment made by the Government at the 2015 election.

I note that in his extraordinary attack on the New South Wales Bar Association the Deputy Premier stated that the bar had taken no interest in the policy since it was announced in March 2015. That announcement, a press release on 3 March, outlines the policy aspects now contained in the bills but fails to provide key details. No definition was provided of what would constitute a serious crime related activity, who a senior police officer would be or on what basis a PSO would be able to be issued. Nor was the fact that there would be, at least in the case of a PSO, no scrutiny provided by an independent prosecutor of the courts or that in relation to an SCPO the legal safeguards present in the United Kingdom and Scottish versions would be absent.

Let us be clear: The announcement of a policy direction in a press release is one thing, but the details of legislation are quite another. It is not unreasonable that the expert legal bodies, the Bar Association and the Law Society, would wish to be consulted on the details of such changes to the law. I note the attack on the bar by Mr  Henskens, SC, for not consulting with the Government on the matter. As the President of the Bar Association, Mr Hutley, SC, noted, the association wrote to the Government on 13 April and received no response. In the letter from the bar to the Government on 2 May, attaching its submission on the public safety orders regime, that organisation again outlined its willingness to sit down and discuss with the Government its views and the reasons for them. I ask the Parliamentary Secretary: Has his Government formally responded to either communication from the Bar Association or any other organisation that has made submissions on these bills and has it met with them?

The Deputy Premier says we should take comfort from the fact that, although not in the legislation and not legally binding in the State of New South Wales, the counterpart legislation has been interpreted by the United Kingdom courts 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.

The Deputy Premier completely fails to mention, and perhaps he fails to understand, that this is not because of the terms of the law in the United Kingdom but because of the presence of both domestic and European human rights laws. The absence in this State of any such human rights framework means that a similar approach to interpreting the laws before this House would most likely not be open to the courts here. I wonder whether members opposite and the responsible Minister have a real appreciation of what they are asking Parliament to enact.

Mr David Shoebridge: What did the European Convention on Human Rights ever give the United Kingdom?

The Hon. ADAM SEARLE: I acknowledge the interjection. The Minister states that we should “be satisfied that this legislation will not be abused” but gives no basis on which we should reach this state of satisfaction. Earlier in my contribution I outlined many powers the authorities have been granted by this Parliament but which appear not to have been used. I referred also to the new consorting laws in the section 93X provisions that the Government has introduced. They have been used. The first person charged was a young man with an intellectual disability. The Ombudsman has since revealed numerous instances where the powers were used specifically in a way that the Government promised they would not be. This gives no confidence that these laws, if passed, will operate fairly, properly or as intended.

The Minister states, “The NSW Government is also confident that the legislation will withstand any constitutional challenge.” Beyond this bare assertion, he provides no basis upon which this Parliament can be confident that the real constitutional concerns, raised by the bar among others, are addressed in the legislation. As I indicated earlier in my contribution, the Labor Opposition will put forward sensible, carefully considered and responsible amendments that meet each of the criticisms I have outlined of the package of bills before the House. Labor’s amendments will ensure that only the Director of Public Prosecutions can apply for a serious crime prevention order. The amendments will narrow the basis upon which an SCPO can be sought and ensure that there is a common approach taken to public safety orders.

We think it ridiculous that the Government is asking the Parliament to enact two regimes of orders. There should be one regime of orders, if any. If we are going to have two regimes then they should be synchronised by requiring a similar trigger. They should have the same risk trigger not two wildly divergent risk triggers. A cynical person would draw the conclusion that the Government is presenting these two bills together—one has the veneer of court approval and due process, the SCPO legislation; and the other is a more sinister and more pervasive one, the public safety orders regime—as it hopes no-one will notice these changes. It is not actually upfront or centre; it is the last schedule in the second bill which deals substantially with an overhaul of the criminal assets confiscation regime.

Mr David Shoebridge: They are sneaking in some new police powers.

The Hon. ADAM S EARLE: They are sneaking some new police powers in. They just did not want to have a frank public debate about the merits of the matter. So we think there should be a common risk trigger for both regimes. Our amendments will also seek to remove the capacity to seek an SCPO if a person has been acquitted of a serious criminal charge if the subject matter is substantially the same. We think that in the current form it smacks of having two bites of the cherry—if the authorities cannot achieve a criminal prosecution against someone then they will proceed against them in this second way.

Mr David Shoebridge: One is a bite; the other is a sledgehammer.

The Hon. ADAM SEARLE: I acknowledge that interjection. The authorities should make a choice as to whether they wish to take a preventative approach or, if they have the evidence, to seek a criminal prosecution. There is something I think sinister and untoward in having two bites of the cherry. Our amendments will also specify that only the Supreme Court may issue serious crime prevention orders, with of course rights of appeal. We will also seek to ensure the capacity of the Supreme Court to admit hearsay evidence is the same as in any other legal proceeding but not greater.

Our amendments will also seek to remove schedule 5 from the organised crime and public safety legislation, which would allow senior police officers to issue public safety orders. We also want to ensure the protection against self-incrimination is not infringed. If the removal of schedule 5 is not agreed to by this House then the Opposition will propose further amendment to ensure that only the police commissioner or a deputy or assistant police commissioner can make a public safety order. Although the term “senior police officer” is used in the regime we do not think the class of police officer specified is senior enough. I think the rank of inspector is the lowest rank of commissioned police officer. If such powerful orders are available to be made by a police officer without court approval and any court oversight and without the ability—

Mr David Shoebridge: Prohibiting court oversight—

The Hon. ADAM SEARLE: —to have an independent judicial officer scrutinise and evaluate whether that order is proper and appropriate, and whether it has even been lawfully made, we think the rank at which a police officer can make that order should be seriously elevated. We also propose amendments that will ensure that an order is able to be made only if there is a serious risk that a person or persons will engage in or cause serious crime related activity, as will be the case in the SCPO regime. At the moment that risk to public security covers everything from property damage, although at a serious level, through to serious injury or death. We think serious crime-related activity should be the common trigger.

We also think, however, that the current definition of “serious crime-related activity” in the SCPO bill is far too broad. It does not cover just people who have engaged in it or who are likely to engage in it; as I indicated earlier, it covers people who, whether knowingly or not—and I think that is a big problem—have facilitated or may facilitate someone else engaging in serious crime-related activity, or are likely to do so. The triggers are just too low and the connection between a person and the behaviour that can be caught by the orders is just too tenuous. We think there should be an adequate right to be heard before any public safety order is made and we think there should be proper appeal rights against the making of any order. We also believe strongly that persons aged under 18 and other vulnerable persons, including the intellectually impaired, should not be subject to a PSO. So that will also be the subject of an amendment.

The amendments will also be directed at ensuring that both bills before the House are subject to the antidiscrimination legislation and that the legislation contains proper protections for nonviolent protest, advocacy and industrial action. On that last point, we note that the police Minister claims that the protections are in the bill. But if we look at proposed sections 87R (2) (c) and 87R (3) we see that it rests upon a police officer’s belief that those things are the primary reason for a person being at a particular location.

Mr David Shoebridge: An unchallengeable opinion.

The Hon. ADAM SEARLE: It is an unchallengeable and untestable assumption by a police officer. We think there should be an objective standard of protection applied so that persons who are not engaged in criminal activities of any kind may still continue to engage in lawful activities of nonviolent advocacy, protest and industrial action pursuing their industrial rights. We think the risk to those persons and those activities posed by this legislation is far greater than the Government’s recent anti-protest laws, and that may well be the reason why those laws have not yet been brought into force or effect—that is, because a much more effective tool is about to be conferred upon the police. We hope the House will join with us and amend the legislation. If we do not get sufficient amendments through then we will not be able to support the legislation in its third reading stage.