A slow erosion of democracy

The cost of tough new powers

By Stephen Blanks

Part of the arsenal of “tough new powers” introduced by the NSW State Government on 22 March is the creation of a Public Safety Order (PSO) regime under the Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016.

These tough new powers have been legislated at the request of the NSW Police to deliver on the NSW Government’s 2015 election commitments. There was no public consultation and, despite being opposed by Labor and the Greens, there has been scant parliamentary review.

These laws are in a long tradition of laws giving police “tough new powers”. Previous examples include counter-terrorism powers (2005), anti-gang laws (2007, 2008, 2009), covert search warrants (2009), drug detection dogs (2012) and anti-consorting laws (2013).

In his second reading speech in the NSW Parliament, the Deputy Premier and Minister for Justice and Police said these powers would “give police the upper hand in the fight against serious crime”. No mention was made of any need to balance these powers with preservation of civil liberties or the rule of law. It certainly cannot be said that these new powers will be subject to strict judicial oversight.

These new powers represent a further shift away from the rule of law towards a police state. They create a parallel system of justice for people targeted by the police, in which the rules of evidence and the presumption of innocence don’t apply. Police officers are empowered to impose onerous conditions on people with almost no accountability.

The Law Society of NSW and the NSW Bar Association have observed that the legislation may 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. This is occurring at a time when crime rates in NSW are continuing their decade-long downward trend.

The key concept of these new powers – the Public Safety Order (PSO) regime – is entirely novel in NSW. The PSO regime allows senior police officers to make orders banning individuals and groups from places or events based on a prediction of the safety or security risk they may pose to persons or property. Breach of a PSO is punishable by up to five years imprisonment.

A person or group affected by a proposed PSO has no right to make submissions to the police officer making the order, and is not entitled to reasons for the making of the PSO. There is no right of review or right to appeal where the PSO does not operate for longer than 72 hours.

While the police officer is required to consider the impact of a PSO on certain fundamental freedoms – such as freedom of association, expression, and communication – the officer may override those freedoms.

The maximum duration of a PSO is 72 hours. However, there is nothing to prevent successive PSOs from being imposed, so there could be an effective operation for more than 72 hours.

A right to appeal to the Supreme Court for review of a PSO exists only if it has operation for more than 72 hours. PSOs can be communicated verbally to the person affected, with the only obligation as to provision of a written copy being to specify a police station at which the affected person may collect a copy.

While people targeted by police using PSOs may be hardened criminals, they could equally be anti-coal seam gas protesters or those who hold unpopular views. PSOs can be made prohibiting a particular person or an entire congregation from attending a particular place of worship – for example, a mosque – every Friday for the foreseeable future.

A PSO can be issued against a person who has never been charged with a crime, circumventing the need for robust evidence and a fair trial. A PSO can also be issued against a person after he or she is acquitted of a crime, effectively negating the outcome of the trial.

The promises of the government and police that this power will be used only in highly circumscribed cases involving the worst offenders should not give us comfort.

These same promises were made before the passage of the consorting laws, which have since been used disproportionately against Aboriginal people, teenagers and individuals with no criminal history. With the passage of this law and its counterparts, the line between preventative and punitive measures has blurred beyond decipherability. The prospect of de facto criminal punishment without the safeguards associated with criminal prosecution should be anathema to any society founded on the rule of law and fundamental freedoms.

Perhaps it should not shock anyone that laws such as this one, which drastically expand the powers of the police, continue to be passed in a climate in which the Police Minister has been elevated above the Attorney-General. The passage of these laws highlights why it is necessary to have effective human rights protection in place in NSW, firstly to ensure parliament follows rigorous processes if passing laws which impinge on human rights, and secondly as an ultimate protection against arbitrary exercise of executive power.

Stephen Blanks is a lawyer and President of the NSW Council for Civil Liberties.

Towards a police state?

By Stephen Odgers SC

Imagine you live in a country where the police could take you before a judge and have you imprisoned simply on the basis that this would prevent you from being involved in future criminal activities. Words like “Orwellian” and “police state” come to mind. Yet the NSW Government persuaded the NSW Parliament to enact a law that could come close to creating just such a scenario.

The Crimes (Serious Crimes Prevention Orders) Act 2016 (NSW) does not permit orders of imprisonment but it allows a court order that would deprive a person of the most basic freedoms of movement, association, communication and employment, as well as the right to silence.

The power to make such an order is conferred in the broadest possible way – it “may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities” (s 6(1)).

An order might require a person to live in a particular location, to stay in that location during nominated times, not to visit other locations, not to associate with certain persons, not to communicate with certain persons, not to use the internet, not to undertake particular employment, to report regularly to the police, to provide information to the authorities, and so on.

Almost any kind of restriction on liberty might be imposed. The only limitation is that the order is considered “appropriate” to prevent the person from being involved in future criminal activities. The reference to “serious crime-related activities” imposes minimal constraint. It is defined very broadly in the Act (s 3, 4). It includes most crimes in the Crimes Act. It includes growing a cannabis plant, supplying an ecstasy tablet, fraud, assault occasioning actual bodily harm, break and enter, tax evasion. It also extends to “facilitating” such crimes, even without knowledge that that is what you are doing.

What test must a judge apply in deciding whether to make such an order? The judge must be “satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities” (s 5(1)(c)).

Putting it simply, the judge must think there are reasons to believe the order would limit the ability of the person to be “involved” in crime. That sets a very low bar.

Not all of us may be the subject of such an order, yet vast numbers of us would be. A person who has been convicted of such a crime at any time in their life; a person who the judge thinks it likely committed such a crime, even if never charged or acquitted by a jury (the judge can rely on hearsay from a confidential police informant); a person who facilitated such a crime, even without being aware of it; the list goes on.

The NSW Bar Association and the Law Society of NSW opposed the Bill when it was before parliament. The view was taken that no satisfactory justification had been advanced for this unprecedented – at least in this country – infringement on basic freedoms.

The crime rate has, in general, been steadily dropping for the past few decades. Police numbers are at record levels. There is no clear need for such extraordinary legislation. The Police Minister supported the Bill on the basis it would be used against “organised crime” and “bikie gangs”. Perhaps it will, at least initially.

In the United Kingdom, which has provided the model for this Bill, similar legislation has been used only sparingly to date. However, there are important differences between the UK legislation and the NSW Act. For example, the NSW Act permits applications by the police, unlike the UK Act. The NSW Act permits the making of an order where a court is satisfied that the person has, at some time in the past, been involved in “serious crime related activities”, without the need for any conviction and even in the face of an acquittal or a decision not to prosecute. The NSW Act significantly constrains the operation of the hearsay rule. Again, unlike the UK Act.

In any event, it is the potential of the legislation, rather than the experience to date with comparable legislation in the United Kingdom, that creates the fundamental concern. We should not be comfortable giving such powers to the State. It is dangerous to permit our liberties, or those of other citizens, to be so easily taken away. Now that the Bill has been enacted, it is crucial that the courts be persuaded to adopt a rigorous approach to the exercise of the discretion inherent in the introductory words of s 5: “[a]n appropriate court may, on the application of an eligible applicant, make (a serious crime prevention order) against a specified person …”.

The Act itself provides no guidance on the exercise of that discretion. A rigorous approach would require careful consideration of the level of risk the person would be “involved” in future criminality, as well as the level of seriousness of those prospective activities. The level of risk required should vary according to the seriousness of the anticipated harm. Further, the uncertainty of predicting future criminal behaviour should be factored into the assessment of the level of risk.

Any deprivation of liberty should be proportionate to the assessed level of risk and consequent risk of harm. Any deprivation of liberty should not be imposed unless it is the least restrictive appropriate alternative. It is imperative that the legal profession do all it can to help the courts to subject the extraordinary powers conferred by the Crimes (Serious Crimes Prevention Orders) Act 2016 (NSW) to the rule of law.

Stephen Odgers SC is a criminal barrister at Forbes Chambers in Sydney.

Putting the shackles on our right to peaceful protest

By Vicky Kuek

In 1982, 20,000 people rallied in Hobart to support the campaign to protect the Franklin and Gordon rivers. At the same time, a non-violent blockade took place for almost a year at the site of the proposed Franklin Dam.

The Tasmanian Parks and Wildlife Services named it “one of the largest acts of mass civil disobedience seen in Australia”. The dam was never built.

At his address to the NSW Mining Industry & Suppliers Awards Dinner in 2014, Premier Mike Baird said legislation that “protects businesses from illegal protesting activities” was needed.

“If we win government in 2015 we will crack down on this illegal practice [of entering mining sites to inflict damage and delay mining operations] with legislation in this parliament,” Baird promised. “If you chose to break the law when you protest, we will throw the book at you.”

The NSW Government introduced the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 on 8 March. By 17 March, the Bill had passed parliament. The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 began on 1 June.

Among other things, the Act creates an aggravated form of the offence of unlawful entry on inclosed lands through amendment of the Inclosed Lands Protection Act 1901.

The maximum penalty has increased tenfold, where the aggravating factor is interference with (or attempts or mere intention to interfere with) a business or undertaking. The Act extends the meaning of “mine” to, among other things, mineral, gas or petroleum exploration sites in relation to the existing offence of intentionally or recklessly interfering with a mine in the Crimes Act 1900. The existing offence carries a maximum penalty of seven years imprisonment.

The Act confers on police additional warrantless search and seizure powers to allow the confiscation and forfeiture of a “thing” which is not of itself intrinsically dangerous, such as a padlock or rope, on the basis of a suspicion of intended use through amendment of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).

The Act removes limitations on the exercise of police powers to give certain directions in the context of protests, demonstrations, processes and assemblies through amendment of the LEPRA.

Scot MacDonald MLC stated in his second reading speech in the Legislative Council that “increased penalties and police powers will help to deter unlawful and unsafe protest activities, and enable mining and other businesses to conduct their activities uninhibited”.

It is of concern that the Act appears to be aimed at curtailing non-violent protest. It appears to legislatively elevate business interests over fundamental rights to peaceful assembly and protest, privacy and property in a number of ways.

First, significantly more serious penalties for trespass on inclosed lands now apply in the business context, where trespass with the mere intention to interfere with the conduct of business is enough to constitute the offence. Second, police powers that encroach on the right to peaceful assembly and protest, the right to privacy and also the right against arbitrary interference with property have been permitted, with little procedural safeguards.

The common law right to peaceful assembly has been expressly recognised by Australian courts, including the Supreme Court of NSW and the High Court of Australia.

The Australian Constitution has been interpreted as requiring Australian citizens to be able to assemble before the Federal Parliament. Courts have noted that peaceful assemblies are “perfectly reasonable and entirely acceptable models of behaviour in a democracy” and are “integral to a democratic system of government and way of life”.

Further, the High Court has interpreted the Australian Constitution as providing for an implied freedom of political communication.

While this is not a personal right, it would invalidate laws that burden the right if such a law is “not appropriate or adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” (Lange v ABC (1997) CLR 520).

In NSW, Part 4 of the Summary Offences Act 1988 facilitates the exercise of the common law right to assembly. Hamilton J in Commissioner of Police v Gabriel [2004] NSWSC 31 emphasised the role of part 4 in providing a mechanism for promoting and managing the conduct of public assemblies.

As his Honour said, “the whole purport of [part 4] is not to prohibit public assemblies, but … to facilitate them”.

Before the Bill was passed, s 200 of LEPRA recognised the right to public assemblies by precluding police officers from issuing directions in the context of protests, demonstrations, processions or organised assembly.

However, pursuant to the Act, police now are permitted to issue certain directions in respect of protests, demonstrations, processions or organised assembly based on an individual officer’s assessment that the direction is necessary on “reasonable grounds” to deal with a “serious risk to safety”. Police also are permitted to issue directions if protests, demonstrations, processes or organised assembly obstruct traffic where such protests have not received authorisation under the Summary Offences Act.

It should be noted that “an authorised assembly” is simply an assembly that has been provided with the additional legal protection afforded by s 24 of the Summary Offences Act, while an “unlawful assembly” is a specific offence under s 545C of the Crimes Act 1900 that can only be committed if a protest turns (or threatens to turn) violent.

By conflating authorisation under the Summary Offences Act with police powers to give directions, the Act appears to provide police with powers, at first instance, to veto non-violent protests and assemblies through the expanded directions powers in LEPRA.

The Act also gives police greater powers to stop, detain, search for and seize a “thing” that is not in itself intrinsically dangerous (such as a padlock).

This can be done on the basis of the police officer’s suspicion that a person may have such a thing in their possession, and that it may be used by protestors to “lock on” to plant, equipment or structures for the purpose of interfering with business, likely to be used in a manner that will give rise to a “serious risk” to the safety of any person.

Given that these new police powers are most likely to be exercised by individual officers in potentially charged situations, it is concerning that there is little guidance in the legislation as to whether or how directions should be issued, and how the search and seize powers are to be exercised. For example, the Act does not provide for what constitutes a “serious risk” to safety.

These powers are not safeguarded by a warrant process, noting that failure to comply with police directions constitutes an offence that may result in a fine, or in arrest and charge.

Further, while the rhetoric surrounding the legislation suggests the Act is aimed at mining protests, the legislation itself does not confine the new police powers in this way.

Even prior to the passage of the Act, NSW police already had significant powers of search and seizure. Further, in addition to the powers provided by LEPRA, common law powers were also available to the police to maintain public order and safety. These included powers relating to breaches of the peace and restraint of a person for his or her own safety, or for the safety of others.

Given the fundamental nature of the democratic rights to assemble and protest, and the individual rights to privacy and property, the expansion of police powers (and the elevation of business interests) to encroach on those rights does not appear to be either necessary or proportionate.

Could past campaigns, such as that to protect the Franklin River or the campaign for universal suffrage, have taken place if individual protestors faced the conditions imposed by the new legislation?

Vicky Kuek is Principal Policy Lawyer, Policy and Practice, at the Law Society of NSW.

Children or terrorists? Interrogation or torture?

By David Porter

The NSW Premier introduced the Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016 to parliament on 4 May. It proposed to allow police to preemptively detain any person aged 14 years or older for up to 14 days on suspicion of being connected to the planning of a terrorist act. The Bill proposed to allow police to question a detainee for as long as considered necessary within that 14 days.

It contained no Supreme Court oversight. It proposed a scheme which absolved the State of some of its fundamental obligations to its citizens. It passed both Houses one week later, with no amendments moved by either major party.

Over that week, the Law Society of NSW made submissions to the government, arguing that the legislation would breach constitutional and international obligations. We can infer that the government considered no amendments necessary. That is indicative of current parliamentary and governmental regard for those obligations.

Investigative detention is a breach of the State’s duty to its citizens. The specific form implemented this year will also undermine the judiciary and generate false confessions. It should be repealed.

The meaning of the investigative detention scheme can be tricky to explain because the ordinary words of the criminal justice system do not have their ordinary meanings. “Arrest” under investigative detention (ID) does not lead to bringing a charge. “Judge” does not infer a court.

The easiest way of understanding the impact of this legislation is not to compare it with the foundations of our system of justice: the Magna Carta, or the International Covenant on Civil and Political Rights (ICCPR). It is to compare it to the furthest edge, to what, just six months ago, were this State’s most extraordinary detention powers: preventative detention (PD).

PD was introduced in 2005, with a 10-year sunset clause and a variety of constraints on its exercise. A PD application required the approval of an assistant commissioner or above. PD was only available by order of the Supreme Court. It only applied to those aged 16 years and over. It allowed detention, but prohibited questioning. PD not only prohibited questioning of the detainee by police, it made it a criminal offence.

Whatever else PD may have been, it was an attempt to keep the state’s security and criminal justice systems from impeding each other’s proper functions.

In contrast, ID has no sunset clause. It will remain until repealed. Junior police officers have the power to arrest under ID without consulting others.

A superintendent is required to approve the detention when the detainee arrives at the police station, and every 12 hours thereafter. That said, there is no safeguard provision demanding the release of the detainee if the superintendent review does not take place.

The Supreme Court has no involvement in ID. To involve the court in the detention of citizens without charge would have impugned the integrity of the judiciary. The executive has no such hindrance.

The many references to an “eligible judge” are references to a Supreme Court judge moonlighting as a member of the Executive (or persona designata). The other law enforcement “eligible judge” provisions in NSW are opt-in systems; but ID is opt-out.

The executive has determined that judges who may authorise covert search warrants should be assumed to consent to their involvement in the detention of citizens without charge. The executive could not force the courts to facilitate this scheme, so it has conscripted the judges.

Parliament now has legislated to allow police to do what would be a crime if the detainee were brought before the Supreme Court under PD. Even the scrutiny provided by a persona designata is not guaranteed by the legislation. Police can imprison a terror suspect for up to four days without an obligation to to seek authorisation outside the Police Force. The effect of 96 hours of questioning can be brutal. It can be torture.

Both PD and ID use a definition of “terrorist act” that encompasses any act intentionally causing serious physical harm that is done to advance an ideological purpose and intimidate a section of the public. The fact that you can be imprisoned under ID for having a “thing” (also an undefined term under the Act) that might be used in that way is one example of why the definition is dangerous. If there is any doubt about the capacity for this legislation to go horribly wrong, we need only remember the 2005 detention and prosecution of Dr Muhamad Haneef. That case was marked by a dogged suspicion that defied the evidence. The outcome might have been different if he could have been questioned for 16 hours a day.

To legislate a positive power to perform an act is to condone the act. The NSW Parliament has condoned the arbitrary detention and interrogation of citizens for the purpose of extracting information. Parliament has condoned this being done to children not old enough to leave school. It is inconsistent with the compassionate stance the Premier has taken to child soldiers from other countries to see our own ones only as terrorists, not as children.

This legislation, which raises fundamental issues with the rule of law, has passed parliament with bipartisan support. So it is incumbent on the legal profession to question whether we have adequately educated parliament and the population as to the meaning and importance of the rule of law. Protecting that principle is a guiding purpose of parliament, even in a time of terror. They must be reminded of that.

There is an additional, and very human, motivation to this legislation other than the need to stop violence like the Lindt Cafe Siege, or the murder of Curtis Chen. It is a motivation which is clear from Hansard regarding this legislation. It is the need of the police force and parliament to feel like they are doing everything they can to stop this violence.

The tragedy is that this need is likely to be satisfied with false confessions of terror plots, because no normal person can withstand the sheer interrogative power that parliament has now given the NSW Police Force.

David Porter is a councillor of the Law Society of NSW and Senior Solicitor at Redfern Legal Centre. These are his personal views.

The solution? Stronger legal protections and greater political will

By George Williams

An extraordinary number of Australian laws now infringe basic democratic standards. A survey I recently conducted of Australian legislation, found 350 examples in a diverse range of laws.

Since September 2001, enacting laws that infringe democratic freedoms has become routine, rather than exceptional, and more rights-infringing laws have been passed in NSW than any other state or territory.

Others have also exposed the willingness of the NSW Parliament to undermine long-held rights and privileges. The Chief Justice of NSW, Tom Bathurst, gave a speech in February in which he set out his own survey of the NSW statute book. It threw up a lengthy list of laws that trench upon basic rights, including those that undermine the presumption of innocence. His conservative estimate is that there are at least 52 laws in NSW that encroach upon the principle.

It seems NSW has passed a tipping point. The self-restraint that politicians once exercised in this regard has been replaced by a greater willingness to campaign for the diminution of community rights. Weaknesses in the NSW system of government exacerbate this.

The system lacks effective checks and balances that might force politicians to think again about enacting such laws. Certainly, the NSW Parliament’s committee system has failed to act as a constraint. Even the most problematic laws can be rushed through parliament with inadequate scrutiny, and with undue haste.

There is no single answer to this problem. Much of the solution lies in the political realm. NSW needs elected representatives from all sides of politics who are prepared to do more than pay lip-service to values such as freedom of speech. They need to back such rhetoric with their actions in parliament and in their party rooms.

Another part of the answer lies in the law. Other parts of Australia have enacted important new statutes to protect human rights, most notably the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The instruments have operated successfully for more than a decade, and have prevented the ACT and Victoria from following the lead of NSW in a number of key respects.

The evidence suggests that it is time that NSW enacted its own human rights act to protect important democratic and legal values.

Prof George Williams AO is Dean of Law at UNSW.