(Debate, 3 May 2016, Legislative Assembly, NSW Parliament)
I strongly oppose the Crime (Serious Crime Prevention Orders) Bill 2016 and the cognate Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016. These bills are extreme and unnecessary and could interfere with people's basic rights such as liberty, privacy and freedom of association. Serious crime prevention orders will enable government authorities to impose sweeping restrictions on the freedoms of suspects based on unreliable evidence and low thresholds of risk. It is easy to envisage the misuse of such orders. Serious crime prevention orders could apply to a wide range of people. An application for an order can be made against anyone who has ever been convicted of, tried for, or allegedly involved in—including unknowingly—a crime that could incur a five-year sentence. Where a person has been tried they could have been acquitted or could have had the charge quashed. There is no limit on when the crime, or alleged crime, occurred, and it need not relate in any way to the order being sought.
Most crimes in the Crimes Act and most drug offences can incur a five-year sentence—including, for example, the possession of a marijuana plant. The scope of who can be the subject of an order has clearly been designed to capture as many people as possible. Past and alleged brushes with crime are an excuse to ensure that more people can be targeted. Serious crime prevention orders have the potential to significantly restrict one's freedom, just short of incarceration. There are no limits on orders; an order can restrict or mandate communication, movement, employment, association, activities and ownership. Forcing someone to answer to police questioning, despite their right to silence, is possible. Orders can last up to five years.
In determining a serious crime prevention order, the courts will be able to consider evidence that is hearsay if the court is satisfied the evidence is from a reliable source. In criminal proceedings there is a longstanding legal tradition against the use of hearsay evidence that could be the basis to incriminate or punish someone, because it is unreliable. The courts will be able to issue a serious crime prevention order if the courts are satisfied that there are reasonable grounds to believe that making the order would protect the public by preventing, restricting or disrupting involvement by a person in serious crime activities. This is extraordinarily broad. Establishing reasonable grounds that a restriction could prevent a crime, particularly using hearsay evidence, is a low threshold to meet. There is clearly no intention to protect innocence; the aim is to ensure that where an order is sought, it will likely be approved.
The Director of Public Prosecutions, the Crime Commission and the Commissioner of Police will be able to make applications for a serious crime prevention order, and they are all officers or agencies of the Executive Government. A government touting its "tough on crime" credentials could encourage a spate of orders to get headlines at the expense of basic human rights. Serious crime prevention orders are an attempt to circumvent a fair trial where there is not enough evidence to prove guilt. There is a dangerous assumption that all suspects are guilty and that fair trials get in the way of catching criminals. This is the type of approach used in dictatorships, not an approach used by healthy democracies.
I am also concerned about proposed public safety orders which give police officers sweeping powers to restrict someone's movement if the officers are satisfied that movement could pose a public safety or security risk. Police would have wide scope in the application of these orders. They would be given broad powers to search vehicles and premises without a warrant if they have reasonable grounds to suspect that the subject of a public safety order is there.
They will also be able to issue an order verbally in emergencies.
Being satisfied is a subjective state and "reasonable grounds to suspect" is a low bar to meet. The potential for intimidation and arbitrary restrictions is serious. The Government has provided no information on why existing laws are inadequate; it has merely described the problems and costs of crime. It did not consult with legal experts or human rights advocates before introducing this bill. Crime exists across the world and presents a challenge to all governments. Healthy democracies do not respond by removing fundamental human rights such as access to a fair trial and the right to freedom. Good governments focus on early intervention, rehabilitation and restoration to prevent crime. I oppose the bills.
You can read the FULL debate HERE