Author: Dennis Miralis
THE 2007 NSW ELECTIONS
As the NSW State election fast approaches, politicians of both sides will attempt to outdo each other in the so called “tough on law and order debate”. If played to script, each Party leader will accuse the other of being “soft on crime” and promise to introduce even tougher laws to punish criminals. Sober statistics reminding us that there has not been an increase in major crime will be ignored. The policies released by the two major Parties so far, show that the bidding war is in full swing.
The NSW Liberal Party Policies are mostly contained in two documents, including “Restoring Faith in the Legal System- Making the Director of Public Prosecutions Accountable” and “Re-empowering Police- Supporting our Police on the Front line”. The Labor Party’s Policies are outlined in “Iemma Government – A Safe and Secure Community”. What follows is a summary of the policies we can expect to hear much about:
- Introduce more frontline Police ( A Labor and Liberal Policy )
- Increase Police Powers ( A Labor and Liberal Policy )
- Introduce more offences ( A Labor and Liberal Policy )
- Introduce increased penalties for these offences( A Labor and Liberal Policy )
- Reduce the Court’s discretion in sentencing offenders (according to the Liberal Party sentences are too lenient)
- Reduce the Police discretion when dealing with young offenders ( according to the Liberal Party the laws relating to young people are too lenient)
- Reduce the DPP’s discretion so that the DPP is more accountable to politicians, rather than completely independent as is the current situation(according to the Liberal Party the Director needs to be more ‘accountable to the community’).
- Introduce mandatory sentencing including mandatory life sentences for murdering Police officers (Liberal Party)
- Overturn established principles of the criminal justice system i.e. The right to silence. According to the Liberal Party this 500-year-old principle, one of the cornerstone of our justice system, is being abused
- Build new gaols ( Labor Party)
- Introducing tougher bail laws. (Liberal Party)
WOULD THESE POLICIES REDUCE CRIME?
Government research overwhelmingly shows that the causes of crime are linked to drug and alcohol abuse, poverty, mental illness, youth unemployment, and poor family structures. However neither Party has announced a single policy offering a “get tough” attitude to these problems. Likewise the rehabilitation of offenders doesn’t appear to be a policy objective, event though it is in interest of the community to give offenders opportunities for rehabilitation.
Figures released by the Australian Bureau of Statistics in January 2007 show the percentage of prisoners held in jail awaiting trial in NSW has increased by 164% since 1996. This should not come as a surprise as having a policy outlining alternatives to prison, could be seen as being “soft on crime and criminals”.
Whilst the above policies provide for tough solutions, neither Party has outlined how they will reduce crime.
NEW “TOUGH ON LAW AND ORDER” LEGISLATION
In the lead up to this year’s election, a number of Acts have been introduced to highlight the Government’s impeccable credentials on being tough towards crime and criminals. Each of the Acts has been introduced against the weight of considered opinion by bodies such as the Australian Law Reform Commission and the Legislation Review Committee.
The Legislation Review Committee was formed by the Legislation Review Act 1987. Under s8A of the Act , the Committee considers any Bill introduced into Parliament and reports to both Houses of Parliament on whether the Bill trespasses unduly on personal rights and liberties, or makes rights, liberties or obligations unduly dependant upon non reviewable decisions.
As such, the committee performs an essential function in ensuring that the rule of law is observed by the Executive. The committee retains a panel of eminent legal advisers and publishes its consideration of bills in the Legislation Review Digest.
It appears that the rule of law and basic human rights are being increasingly ignored in favour of victory at the polls. This results in hastily and ill considered legislation that should be of concern to all citizens of NSW.
THE “anti-gang” LEGISLATION
When introducing this legislation to the NSW Parliament, Mr. Tony Stewart MP made the following comments:
“We have ramped up the penalties for gang crimes, we have given police tough new powers, we have introduced Australia’s first criminal organization offences and we have given police and their families the protection they deserve. Crime gangs are on notice. Whether you are a violent mob or an ongoing criminal enterprise, the police are coming after you”.
The Crimes Legislation Amendment (Gangs) Act 2006 was passed on 19 September 2006 and amends the Crimes Act 1900 and the Law Enforcement (Powers and Responsibilities) Act 2002 to create new offences relating to “participation in criminal groups” and new aggravated offences in relation to assault or damage during a public disorder. The Act also gives police further powers to disperse groups and to enter and search premises.
Like many of the reading speeches on law and order, Mr Stewart’s speech contained dramatic assertions that were intended to create fear in the community about “rampant lawlessness”. It included a reference to “significant crime gangs based on common ethnicity. They include Vietnamese and Chinese gangs with a strong involvement in the drug trade, Pacific Islander groups who are specialists in armed robberies, and criminals of Middle Eastern origin who engage in firearm crime, drug trafficking and car rebirthing”
No objective evidence was offered in support of any of these claims and disturbingly ethnicity was being referred to as a cause of criminality, reflecting the prejudice often heard on talkback radio. The fact that these views were expressed in Parliament reinforces the significant influence the media have on politicians in the debate on law and order.
THE LEGISLATION REVIEW COMMITTEE’S REPORT
The Legislation Review Committee published its report in Legislation Review Digest no.10 of 2006. It was concerned that the meaning of “participate in a criminal group”, is unclear and may result in criminal liability for participation in a group, where a person does not intend to advance the criminal objectives of the group as set out in the Act. This means that a motor mechanic who merely repairs a “bike gangs” motorcycles may be potentially convicted without having any intention of assisting the criminal group. This is because the Act significantly departs from the traditional criminal law rules relating to accessory.
Under this Act there is no requirement that the accused must have intended to provide assistance or encouragement to a criminal group. Additionally it isn’t necessary for the prosecution to prove that the accused knowingly or recklessly contributed to the commission of a specific crime.
These are fundamental departures from the requirement in criminal law that an accused is guilty only if they have a guilty mind and intends to commit an offence.
The Legislation Review Committee was concerned that this “lack of clarity” may allow a person to be convicted of the offences of being involved in a gang, which carries a maximum penalty of 5 years imprisonment, on the basis of conduct that is “relatively peripheral to the commission of a minor summary offence by others, where the accused merely foresees that it is possible ( i.e. being reckless) that his conduct will contribute to the occurrence of crime in the future” The Committee concluded that this lack of clarity was in breach of the rule of law principle of “legal certainty”.
With respect to the increase in police powers intended to prevent or control public disorders, the Committee noted that the Act potentially trespasses on the right to peaceful assembly. This is a right established by long custom at common law and also international law. The committee noted that due to the very breadth of the Act’s scope, innocent bystanders will be subject to police powers. Under section 87D, if a police officer believed, for example, that a political protest posed a threat of public disorder, a targeted area could be declared and the protestors could be charged with a criminal offence, if they failed to disperse. It concluded that such a power significantly “interferes with peoples civil rights”.
Despite the significant nature of the concerns raised by the Committee the Act was passed. The political desire to be seen to be “tough on gangs” appears to have outweighed considerations of civil liberties and well established principles of the rule of law.
THE RIGHT TO TRIAL BY JURY?
One of the most significant changes to criminal law in NSW was made with the introduction of the Jury Amendment (Verdict) Bill 2006 which amends the Jury Act 1977 to allow for majority verdicts in criminal proceedings.
The following background was given in the second reading speech by Hon R J Debus MP: “The central aim of this bill is to reduce the number of hung juries in order to achieve certainty and finality to criminal proceedings; it is not necessarily aimed at achieving a greater number of convictions by majority verdict”.
Not surprisingly, the Act received the support of the Director of Public Prosecutions and the Senior Crown Prosecutor of NSW.
The Act provides for the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict, if all of the jurors are unable to agree on a verdict after deliberating for a reasonable time (being not less than 8 hours) and the court is satisfied that it is unlikely that the juror will reach a unanimous verdict after deliberation (s 55F).
The Legislation Review Committee noted that the right to trial by a jury for criminal offences is a central plank of Australia’s fair trial guarantees and at the Commonwealth level is guaranteed by s80 of the Constitution.
In Cheatle the High Court considered s2(a)(i) of the Act which provides for the reduction of the jury to a number not below ten in criminal trials. According to the High Court, unanimous verdicts in criminal trials are an essential feature of trial by jury as required by the Constitution. The High Court explained this by stating: “The common laws insistence upon unanimity reflects a fundamental thesis of our criminal law, namely that a person accused of a crime should be given the benefits of any reasonable doubt…A verdict returned by a majority of the jurors over the dissent of others objectively suggests the existence of reasonable doubt and carries a grater risk of conviction of the innocent than does a unanimous verdict” (emphasis added).
The NSW Law Reform Commission in its report 111, tabled in the Legislative Assembly on 9 November 2005, noted that current research suggests that juries required to make unanimous decisions considered the evidence more carefully and thoroughly than juries operating a majority verdict system.
The commission also pointed out that if one or two of those jurors’ views can be ignored because they differ from the rest, then the true significance of the jury as an instrument of peer judgment is lost. The concern over the question of hung juries it observed is not necessarily bad as “disagreement among jurors can force the evidence to be viewed from different perspectives and leads to a more thorough investigation of the issues.”
The ALRC recommend that the system of unanimity be retained and that strategies be developed to assist juries in understanding the jury process better.
The Legislation Review Committee concluded that the Act was in breach of fundamental rights, as the majority verdict trespasses on the right to be presumed innocent until proved guilty.
Despite the significant concerns of both of these bodies, the Act was introduced, radically changing jury trials in NSW and exposing all accused people to a higher likelihood of a conviction.
The public outrage that is expressed against child sex offenders means that the legislation dealing with these kinds of offences is the most susceptible to a tough on law and order approach. The Liberal Party has even issued a separate policy document dealing with sex offenders.
The Crimes (Serious Sex Offenders) Act 2006 is arguably the most draconian piece of legislation introduced in recent history. It provides for extended supervision or continued detention beyond the term of imprisonment given at sentencing for serious sex offenders.
The Act enables the Attorney General to apply to the Supreme Court for an extended supervision order (ESO) or a continuing detention order (CDO) against a sex offender, who is currently in custody serving a sentence for a serious sex offence or an offence of a sexual nature.
The Supreme Court may grant the application for an extended supervision order or a continuing detention order if is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence, if he or she is not kept under supervision.
However the Court cannot make a continuing detention order unless it is satisfied that an extended supervision order would not provide adequate supervision.
The maximum term for an extended supervision order or a continuing detention order is 5 years. However the Supreme Court may grant further extended supervision orders or a continuing detention orders upon Application by the Attorney General if it is satisfied that the conditions are met. There is no limit to the number of such orders it can make.
The Legislation Review Committee raised a significant number of concerns regarding this Act, including that it breaches “the basic principles of fairness that have tradionally guided the criminal justice system, that is, that a person should only be deprived of liberty in relation to conduct in which they have engaged in the past – not criminal conduct in which they may engage in the future.
“In Fardon, Kirby J (in dissent) put it as follows: “In this country, judges do not impose punishment on people… for future crimes that people fear but which those concerned have not committed”. [The Act departs from this principle and therefore] “trespasses on personal right and liberties”.
The Committee also noted that the Act exposes individuals to periods of prison detention or community supervision, on a standard which is lower than the traditional test, used to determine whether a person should be punished for criminal conduct, namely beyond reasonable doubt.
The Act also offends against the principle that criminal punishment should not be retrospective. Article 15(1) of the International Covenant on Civil and Political Rights provides that it is not acceptable to “impose a heavier penalty…than the one that was applicable at the time when the criminal offence was committed”
Under the Act a person who was originally sentenced to a finite maximum sentence (eg 15 years) may ultimately end up being imprisoned until they die as the 5 year detention orders can be extended without limitation.
The Committee also noted that freedom from arbitrary detention is a fundamental human right and a fundamental principle of criminal law. The Act breaches this principle by utilising as a central criterion “whether there is a ‘high degree of probability that the offender is likely to commit a further serious offence’… turns on an assessment of risk”. In Fardon, Kirby J suggested that an equivalent Queensland piece of legislation (the Dangerous Prisoners (Sexual Offenders) Act 2003 “ulitmately deprives people…of personal liberty, a most fundemental human right, on a prediction of dangerousness, based largely on the opinions of psychiatrist which can only be, at best an educated or informed ‘guess’.
The political desire to be tough on crime has had a significant impact on the kind of criminal legislation that has been enacted in NSW over the past decade. The policies announced by both parties continue the trend of more police, more offences and longer sentences. No serious thought has been given to alternatives to prison or methods of improved rehabilitation.
In a desire to offer quick solutions to complex problems, politicians have introduced legislation that significantly undermines the following principles:
- The rule of law;
- The principles of legal certainty;
- Common law right to assembly;
- The right to be tried by a unanimous jury which must reach a unaminous verdict for a conviction;
- The right to only be sentenced for a crime that you have committed, not a crime you may commit;
- The right to be regarded as guilty to the requisite criminal standard, i.e. beyond reasonable doubt;
- The right to not be retrospectively punished for a criminal offence;
- The principle that you can only be guilty if you have a guilty mind i.e. criminal intention
The statutory bodies that have been created to protect citizens from these significant infringements have raised serious concerns about what has occurred. However it has been demonstrated that our politicians have ignored their concerns for the sake of short term political gain.