Crimes (Serious Crime Prevention Orders) Bill 2016; Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016
3rd May 2016
Mr GREG PIPER ( Lake Macquarie ) ( 17:49 :33 ): I speak on the Crimes (Serious Crime Prevention Orders) Bill 2016 and its cognate bill, the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016. While I understand the intention of the bills, I will be opposing them on the grounds that this is yet another unwarranted step in eroding our rights and civil liberties. The Crimes (Serious Crime Prevention Orders) Bill 2016 will deliver unprecedented powers to police and is disproportionate to the freedoms it will strip away from our most basic constitutional rights. It goes without saying that we should give our police and law enforcement agencies every reasonable means to protect the broader community from organised crime, serious criminals and the likes of terrorist threats.
I acknowledge at this stage that I believe the Government and the Minister have done much in that area. This is not an attack on the Government broadly on the way it deals with policing in New South Wales. However, I believe this particular bill goes too far. As a Parliament we should not condone this type of legislation, which provides for one more step towards what many see as being a police state. I accept the intention of the Deputy Premier and the Minister for Police, who in introducing the bills to the Parliament last month said the Government would honour an election commitment by delivering tough new powers to police in their fight against organised crime, but this should not be the mechanism.
I accept the Deputy Premier's assertion that these new powers would be used sparingly when required to protect the community from serious criminal activity. But therein lies the problem because we cannot guarantee that those are the only times when these powers will be used. I know specifically that under this proposed legislation an appropriate court could provide police or other eligible applicant with a special crime prevention order against someone who has been involved in a serious criminal offence. That person does not have to have been convicted or even tried for that offence before an order can be imposed.
The legislation states that serious crime-related activity can mean "anything done by a person that is or was at the time a serious criminal offence" but continues with "whether or not the person has been charged with the offence". That in itself is a questionable scenario and suggests that the whole basis of our legal system—that of being entitled to a fair trial—is now subordinate to someone's subjective judgement. It presents an alternative to the current system where everyone is entitled to a fair hearing in our courts. It is totally contrary to our system of administering the law through a fair court process.
What I strenuously oppose is the situation where police, the Commissioner of Police, the Director of Public Prosecutions or the Crime Commission can apply to a court to seek a serious crime prevention order even when the person has not committed a crime, has been acquitted of a crime or not yet been tried for a crime. We simply should not be party to such changes. We cannot stop someone from attending a rally or a protest or being somewhere the police do not want them to be on the basis that they were tried and acquitted of a crime at some stage earlier.
In fact, anyone who has ever been charged, acquitted or convicted over a matter that carries a maximum penalty of more than five years in jail could qualify for a prevention order. As was rightly pointed by the NSW Bar Association, the offence of dishonestly damaging property worth more than $500 with a view to making a gain carries a maximum penalty greater than five years in jail. Therefore, someone who smashes shop windows valued at more than $500 and steals a television could be captured by this legislation. Of course, they should be subjected to penalties. The question is: Are these the sorts of penalties we want to use against them?
It might sound flippant or even unrealistic but that is what this legislation allows. It is out of step with community expectations and disproportionate to the actual crime. I am also at a loss to understand why these sweeping changes are required. If their objective is to protect the public, how will they protect the public any more than existing legislation? Surely those same outcomes can be achieved through less restrictive measures—measures that do not impinge on basic civil liberties to the same extent as this legislation.
I have grave concerns about the level of consultation that preceded the introduction of these bills. As I understand it, little or no consultation was carried out involving the general public or key legal and professional bodies. The same is true of consultation with civil liberties groups and law reform agencies, many of which now say that the legislation would almost certainly be defeated if a constitutional challenge were launched. I will not predict what might happen if any such challenge were launched. However, I strongly reject the legislation because it represents a significant erosion of our basic civil rights and creates a dangerous imbalance in the way in which we enforce our laws. I believe that we can do better in our fight against organised crime than what is proposed in this legislation without stripping away the freedoms underpinned by our constitutional rights.
Finally, I fully understand and appreciate that the Government needs to be able to govern. However, I also believe that when such significant changes are proposed the Government has an obligation to undertake meaningful consultation with the community. This is an occasion on which discussion with non-government members would have cast the Government in a much better light. If nothing else, it would at least provide a better understanding of the rationale for such major changes to our fundamental tenets of law. At this stage I cannot support the legislation. I will be interested to see how it is dealt with in the other place and the amendments proposed by members of the Opposition. I wish the Government and the NSW Police Force all the best in keeping the citizens of New South Wales safe. However, we must be much more balanced and nuanced in the way in which we achieve that. We must be extremely careful not to remove the rights that are part and parcel of the New South Wales Constitution.
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