Thursday, 12 May 2016

Baird Government creates arbitrary laws constraining the innocent as well as the allegedly guilty citizen

The Crimes (Serious Crime Prevention Orders) Bill 2016 (NSW) (the Bill) is an extraordinary and unprecedented piece of legislation with grave implications for the rule of law and individual freedoms in New South Wales.

The Bill was announced on 22 March 2016 by the Deputy Premier and Minister for Justice and Police the Honourable Troy Grant MP, joined by New South Wales Police Commissioner, Andrew Scipione.
Notice of motion for the Bill and its second reading in the Legislative Assembly occurred on the same day…..

the Bill creates a very real danger of arbitrary and excessive interference with the liberty of many thousands of New South Wales citizens. The powers to interfere in the liberty and privacy of persons, and in freedoms of movement, expression and communication, and assembly are extraordinarily broad and unprecedented, and are not subject to any substantial legal constraints or appropriate judicial oversight….. [A submission of the New South Wales Bar Association, 13 April 2016]

the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 (NSW) (the Bill) has serious implications for the rule of law and individual freedoms in New South Wales.
vii. in relation to a long duration PSO, there is no upper limit on the duration of the order; viii. in many cases, a person the subject of an order a will have no means of knowing the basis upon which a senior police officer has reached the satisfaction required by s 87R - in accordance with clause 87T(4), a statement of the reasons for making or varying a PSO must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person;
ix. there is no right of appeal to the Supreme Court in relation to a PSO which is not a long duration PSO. In the case of an appeal against a long duration PSO, the non-disclosure of criminal intelligence and other criminal information held in relation to the person, and the hearing of argument in the absence of the person and their representative (unless the Commissioner approves otherwise) is likely to render the right to appeal practically meaningless;
x. clause 87ZA creates a criminal offence of contravening a PSO carrying a maximum penalty of imprisonment for 5 years, and in contrast to 32 of the Serious and Organised Crime (Control) Act 2008 (SA), there is no defence of reasonable excuse for being within or entering a specified area; (b) there has been no public debate about the Bill, and no case made as to why such broad and far-reaching powers should be conferred on the police;….. [A submission of the New South Wales Bar Association, 2 April 2016]

On 4 May 2016 the NSW Parliament passed the Crimes (Serious Crime Prevention Orders) Bill 2016 without amendment.

On the same day it passed the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016, again without amendment.

Text of the Crimes (Serious Crime Prevention Orders) Bill 2016 can be found here and text for the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 here.

A look at this further curtailing of the rights of citizens residing in New South Wales.......

Sydney Criminal Lawyers, 3 April 2016:
The government is proposing new laws which would empower senior police officers – without permission from a court – to issue “public safety orders” banning individuals who police claim are a “risk to public safety” from attending specified public places for 72 hours.
Police cannot presently do this without a court order…..
There are concerns that police will use these new powers to target individuals who don’t ‘tow the government line’; such as leaders of protest groups and other outspoken individuals – preventing them from attending demonstrations and rallies.
The Guardian, 14 April 2016:
New police powers that could see citizens in New South Wales face bans on their employment, restrictions on movement and curfews without ever having committed an offence would set up a “rival criminal justice system” and should be scrapped, the New South Wales Bar Association has warned.
The NSW government has sought to introduce new powers called serious crime prevention orders.
The bill would give police similar powers to those they have to seek and impose control orders on terrorism suspects – but they could be applied to all citizens in NSW who are alleged to have some proximity or involvement to a serious crime, without a person ever being found guilty of an offence.

They would allow orders to be made on any citizen restricting their movement, who they associate with, who they work for and whether they can access the internet.

Even when a person is acquitted of a criminal offence police could still seek such an order.

The penalty for breaching an order could be up to five years’ imprisonment or a $33,000 fine for an individual, or $165,000 for a corporation.

In a scathing submission the NSW Bar Association criticised the government’s limited consultation with legal groups and its attempt to rush the bill through NSW parliament.

“No evidence has been cited as to the ineffectiveness of the administration of criminal justice by a process of trial for ‘reducing serious and organised crime’ in New South Wales,” the submission said.

“The bill effectively sets up a rival to the criminal trial system and interferes unacceptably in the fundamental human rights and freedoms of citizens of NSW.”

It said the government had failed to explain why the powers should be expanded in a manner “so contradictory to long-settled principles concerning the adjudication of criminal guilt by a fair trial”.

The police minister, Troy Grant, has said that the measures would provide law enforcement agencies with a more effective means of reducing serious and organised crime by targeting business dealings and restricting suspects’ behaviour.

Under the new provisions, the NSW police, the NSW Crime Commission and the NSW director of public prosecutions could seek orders from a judge, who must be satisfied there are “reasonable grounds” it would protect the public by restricting or preventing serious crime-related activity.

But the bar association said it was unclear why the laws were needed. While they could be applied to individuals who had been convicted of a serious criminal offence, they would also be applicable to behaviour that was considered “serious crime-related activity” without an offence needing to be proven.

The orders could also be sought on the basis of hearsay and other forms of tendency evidence that would normally be inadmissible in a normal criminal trial.

The bar association warned that the laws posed an unacceptable interference with citizens; right to freedom of expression, association and privacy. They also noted that the orders were of “doubtful constitutional validity”……

The Guardian, 7 May 2016:
Legal Aid NSW will review its policies to consider when and how Australians who face controversial new crime prevention orders will be eligible for legal assistance.
On Wednesday, a bill passed by the New South Wales upper house granted police powers to create serious crime prevention and public safety orders.....
Because the police powers are so novel and are considered to be civil, rather than criminal, they don’t fall neatly into Legal’s Aid’s existing sets of guidelines for when they will provide legal aid.
Legal Aid NSW has separate criteria for criminal and civil matters and in what circumstances it can provide legal assistance for them.
While the powers have not yet come into effect, a spokeswoman for Legal Aid NSW confirmed that it was considering how cases would be dealt with.
“Legal Aid NSW will be reviewing its policies to determine how matters brought under this bill should be dealt with,” she said.
“Any changes to policies would have to be approved by the board.
“If a matter arises before this has happened, the CEO can exercise discretion to determine applications on a case by case basis.”......
The Redfern Legal Centre warned that the new powers would essentially remove equality before the law.

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