Move On Directions Bill: 2nd reading speeches cont. and 3rd reading

Hansard | NSW Legislative Council | 25 May 2011 

Mr DAVID SHOEBRIDGE [11.25 a.m.]: I speak on behalf of The Greens against this retrograde piece of legislation introduced by the new Coalition Government. The Law Enforcement (Powers and Responsibilities) Amendment (Move On Directions) Bill 2011 will amend the Law Enforcement (Powers and Responsibilities) Act 2002 in relation to move-on directions to intoxicated persons in public places. The bill is of modest compass—with only one effective clause—but the bill will change the move-on powers for police in respect of intoxicated persons. As members know, currently these only apply to groups of three or more people who are in a public place and where a police officer believes on reasonable grounds that their behaviour as a result of intoxication is likely to cause injury or otherwise be a risk to public safety. The substantive amendment in this bill is to authorise police to move on a single intoxicated person by themselves rather than in a group.

It is said by the Coalition that this is the first part of its plan to tackle alcohol-related violence and antisocial behaviour. It is claimed by the Government that it intends to use new ways to address this complex issue. Well, nothing could be further from the truth. This is in fact a throwback to the 1970s, to a failed method of policing and a failed method of dealing with drunkenness in public places. We had some quite insightful contributions by the Hon. Marie Ficarra dealing with the effect of alcohol in our community and dealing quite openly with the impact of drunkenness on our streets and the need for any government to be mindful of ways to deal with public drunkenness and to deal in an effective but also a tolerant and careful manner with the people that the police confront on the streets.

Anyone who goes out in some of our country towns and parts of the central business district of Sydney realises what a tough job the police have dealing with people who are intoxicated on the streets—often groups of people intoxicated on the streets. It is clearly a difficult job for police officers when faced with people who are intoxicated on the streets, but this bill will make the job for the police more difficult. This bill will effectively require the police, because they have the power, to move on individuals who are intoxicated when they run into them on the streets.

The Hon. Amanda Fazio pointed out the history of legislation of this type, which has predominantly been used against marginalised groups in society. It is the single intoxicated homeless person who will be moved on by the police; it is members of the Aboriginal community, who have traditionally been targeted by the police using these kinds of powers in the 1960s and 1970s; it is people who are mentally ill and are often found to be of social difficulty on the streets that will be subject of these move-on powers. That has been the history in the past. This is not a new way forward by the Coalition; this is a throwback to the 1970s.

It is unclear that the Government has looked at the balance of powers found for the police in the Law Enforcement (Powers and Responsibilities) Act before taking this step, because there is already power under section 197 for a police officer to give a direction to a single person in a public place if that person is obstructing another person or persons, or traffic; if that person is undertaking conduct which constitutes harassment or intimidation; if that person is causing or is likely to cause fear to another person or persons, provided that is reasonable; or if that person is, for example, unlawfully supplying or intending to unlawfully supply or solicit from another person a prohibited drug, or if that person is in a public place for the purpose of obtaining, procuring or purchasing a prohibited drug.

Get-tough laws erode functions of justice

Richard Ackland | SMH | May 27, 2011

A critical point ... the slow but steady erosion of judicial discretion. 

The government's proposal to create mandatory life prison sentences specifically for people who murder police officers has ''thin end of the wedge'' stamped all over it.

Already NSW law says that the standard non-parole period for murder, where the victim is a police officer, is 25 years. The same standard non-parole period also applies in circumstances where in their line of work the murdered victim is an emergency service worker, a correctional officer, a judge, a council law enforcement officer, health worker, teacher, community worker or any public official exercising public or community functions.

That does not mean that a judge exercising discretion cannot impose a real ''life means life'' sentence for a particularly heinous murder. What the O'Farrell government is proposing is to remove the discretion of judges to impose lesser sentences than the standard non-parole period, which depend on the objective seriousness of the crime.

What's to stop the government pandering to radio commentators and public indignation by pressing further and removing the discretions and imposing brick-them-for-life sentences where murdered victims are teachers, community workers, council parking officers, and so on?

What it means, in effect, is that a foolish 19-year-old who, in a drug-crazed moment, kills an arresting police office will never get out of jail, regardless of the degree of subsequent redemption.

The Attorney-General, Greg Smith sought to bolster the case with a generous dollop of speciousness: ''The murder of a police officer is a direct attack on our community and warrants exceptional punishment. It sends a serious message of support to our police, but I hope it is never used.''

The slow but steady erosion of the judicial discretion has reached a critical point. Our constitution provides that all courts that exercise federal jurisdiction, and that includes the state courts, have an institutional integrity. The government of the day cannot usurp judicial functions.

Parolee to challenge gag order

Farah Farouque | The Age | May 26, 2011

A PALM Island indigenous activist convicted of rioting following the death in custody of Cameron Doomadgee will mount a High Court challenge to a gag that prevents him from talking to the media.

As part of parole conditions, Lex Wotton is prohibited from ''speaking to and having any interaction whatsoever with the media'', nor can he attend public meetings on Palm Island without permission of Queensland Corrective Services.

When Mr Wotton sought permission from his parole officer to attend a juvenile justice forum in October last year to speak on youth alcohol and drug use in his community, he was denied permission, according to court documents obtained by The Age.

His challenge could have profound consequences as it will test the nature and scope of the right to freedom of political communication, participation and association under the constitution.

Phil Lynch, from the Human Rights Law Centre, which is backing the challenge to be heard in August, said the case strikes at the heart of what is meant by ''representative democracy''.

In two previous cases - one involving prisoner voting rights and the other, early closure of the Commonwealth electoral roll - the High Court has been developing the concept of representative democracy, although it is not explicitly stated in the constitution.

Mr Lynch said Mr Wotton's case raised ''fundamental civil and political rights''. ''It should be the case that prisoners and former prisoners are not denied any rights other than the right to liberty. To deny them other rights, such as freedom of speech, is to undermine their rehabilitation and re-integration.''

After a jury trial in 2008, four years after the Palm Island riot, Mr Wotton was found to have breached the Queensland Criminal Code and was sentenced to six years' jail. A district court judge determined that he was a leader of the riot, which caused millions of dollars in damage to Palm Island infrastructure.

In author Chloe Hooper's book The Tall Man, she described Mr Wotton's actions at the riot as drawing national attention to Cameron (Mulrunji) Doomadgee's death in custody, which had occurred a week earlier.

Following his release in July last year, Mr Wotton has worked at the Palm Island drug and alcohol rehabilitation centre.

His legal team, including Melbourne counsel Ron Merkel, QC, will seek to strike out a section of the Queensland Corrective Services Act 2006 and invalidate parts of his parole, including the media gag.

Mr Lynch said that under Queensland law, if the The Age spoke to Mr Wotton, the journalist could face charges and jail.

Judgment day for the DPP

Geoff Chambers and Lisa Davies | The Daily Telegraph | May 26, 2011 

ATTORNEY-General Greg Smith has moved to change laws so he can nominate a judge to become the state's top prosecutor.

Mr Smith is expected to snub Sydney's leading barristers and install a senior judicial identity as the Director of Public Prosecutions.

The No.1 candidate on Mr Smith's wish list is believed to be District Court Judge Martin Blackmore, a former Crown prosecutor and deputy DPP.

Sources said Mr Blackmore, who declined to comment on the speculation, had intended to apply but was concerned about not taking his pension with him.

Mr Smith tagged an amendment to the Director of Public Prosecutions Act as part of the Courts and Other Legislation Amendment Bill 2011.

"The Bill amends the Act to make it clear that if a judge or former judge is appointed as DPP, then his or her prior judicial service counts towards any judicial pension to which the DPP would be entitled," Mr Smith said.

"The amendment makes it certain that prior service as a judge counts toward service as DPP for the purposes of determining eligibility for the DPP's judicial pension."

Veteran solicitors and barristers said Mr Blackmore would be a "sound and welcome" appointment.

But there was speculation last night that other Crown prosecutors turned judges - including Judges David Frearson and Richard Cogswell - were also in the mix.

Judge Paul Conlon did not apply for the job.

The remuneration package for a District Court judge is $331,690, compared with the DPP salary of $368,550.

Leading barristers Chris Maxwell QC, Margaret Cunneen SC and Lloyd Babb SC are understood to have applied for the DPP job.

Nick Cowdery, who retired as DPP in March after a 16-year tenure, said the legislative change would clear the path for a judge to replace him.

The legislation would also allow Mr Cowdery to be offered a spot on the bench without any impact on his retirement benefits.

Mr Cowdery, who said he was enjoying his retirement working with universities and international agencies, has not been offered a judicial job by Mr Smith. But he did not rule out stepping up if his former DPP deputy offered him a job.

"It is a practical move and there are obvious implications if you don't do it," Mr Cowdery said. "No judge would nominate because they would lose their judicial entitlements. There may be a number of judges who wish to put their hand up for DPP. That has definitely happened in other jurisdictions."

Mr Smith's spokesman would not comment on his choice for DPP.

Making sentences fit some crime

Anna Patty | SMH | May 26, 2011

A series of gunshots fired at close range killed 26-year-old police officer Glenn McEnallay in his highway patrol car after he responded to a report of a stolen car in Matraville in March 2002.

The man who pulled the trigger, Sione Penisini, was sentenced to 36 years in prison, but his accomplices escaped with much shorter sentences after they pleaded guilty to manslaughter. A public outcry followed and the murdered officer's father, Bob McEnallay, described the seven-year jail term handed to one of them as ''an absolute bloody joke''.

But this week he made it clear he does not believe his son's life was worth more than that of any other citizen. He says the state government's plan to introduce mandatory life sentencing for people who murder police is unfair to other victims of serious crime. Bob McEnallay says the life of his surviving son, Troy, not a police officer, should not be valued less than that of Glenn. He believes there should be a minimum sentence for murder, regardless of who the victim is.

''I wouldn't like to think my son's case would attract more attention from the courts than some other citizen,'' he says. ''I know the [government's] intentions are good, but I would rather see a system where the maximum possible sentences for murder are issued for any citizen who is murdered.''

The NSW Attorney-General, Greg Smith, says the bill to be introduced in Parliament this week was developed in response to the murder of police officers David Carty in 1997 and Glenn McEnallay. His office confirms the new law will not apply to accessories to murder, such as the Taufahema brothers who were involved in the McEnallay killing. The new law will mean only the murderer would serve the term of his natural life in prison.

Judging a life's worth

Greg Barns | The Drum | 25 May 2011

The move this week by New South Wales Attorney-General Greg Smith to pass a law which would force courts to impose life imprisonment without parole on persons convicted of murder of a police officer raises broader questions about how our society values life.

Mr Smith’s move is a major development in a disturbing trend for legislatures in Australia, borrowing from the United States, to pass laws which force courts to punish persons more severely where they inflict physical violence on police officers or emergency service personnel such as ambulance officers.

In Western Australia a law introduced in 2009 forces courts to jail individuals who assault police officers, irrespective of the circumstances of the case. In Queensland and in Tasmania conservative political forces have proposed laws which would impose a mandatory period of imprisonment on a person who assaults not only police officers but ambulance officers and firepersons.

The O’Farrell government’s new law in New South Wales has already sparked lobbying by police unions and their allies for other governments around the nation to follow suit.

It is one thing for judges and magistrates to impose harsher punishment on a person who assaults a police officer who is acting in the course of their duty, but quite another for the legislature to enshrine in statute the idea that the right to personal security of that police officer is somehow more worthy of protection than that of say a 25 year old woman in the suburbs, an Aboriginal person living it rough in central Australia, or a 40 year old male working in a coal mine in Queensland.

The trend in law making towards the latter – that is ‘rating’ the value of human life and wellbeing - undermines the notion, rooted deeply in our society, that all lives are equal.

Call for radical intervention on juvenile justice

Sarah Dingle | ABC Online | 25 May 2011

The head of the St Vincent de Paul Society in New South Wales says it must be recognised that juvenile justice in Australia is an Aboriginal problem and that it needs to be dealt with accordingly.

He was one of the participants at a forum in Sydney last night which heard each young Australian offender costs hundreds of thousands of dollars a year to keep in detention, and that it is far cheaper to deal with them in the community.

A national report on young people in detention soon to be released calls on the Federal Government to adopt a radical preventative approach. St Vincent de Paul spokesman Graham West told the forum juvenile offenders needed more radical intervention than their adult counterparts.

"About half the population in juvenile justice is Aboriginal. This is an Aboriginal issue. The other issue that pops up immediately [is that] around 35 per cent have an IQ below 79," he said.

Mr West says it is time for a national rethink. Instead of dealing with the crime, he says, treat the symptoms.

"Justice reinvestment is about looking at what's causing people to end up there in the first place," he said.

"So rather than just we have a crime, we have people held responsible for it, and it goes back out, what's leading people in?

"We know Aboriginal communities are well and truly over represented around the nation and in knowing what communities they come from because we have that information, we can design interventions in those areas."

He says it is hard to define justice reinvestment, as every area is different. One successful pilot study in Newcastle reduced reoffending to a minimum. It involved an intensive supervision program for young offenders, where a worker was available 24 hours a day, could come around to their house and teach skills to their family. Mr West says programs which are family focused deliver some of the best returns.

"It's a whole approach premised on the fact that if we invest that money now, we don't have to invest $200,000 per year to keep someone in custody," he said.

"We can reduce those figures and that's where the reinvestment comes in."

Peter Murphy, one of the authors of an upcoming national report on young offenders and juvenile detention, warns justice reinvestment is a tough political commitment because at least at the start, it requires extra money.

"We need to continue with the current spend that we have around detention and community type programs, but concurrent with that, we actually need to start investing in communities where there is high rates of criminal behaviour," he said.

Mr Murphy says from a purely economical point of view, with an ageing population and a skills shortage, each Australian child is even more valuable than before.

"The Prime Minister has indicated we need every child to be succeeding in education and then joining the workforce, so we can't afford not to do it," he said.

Mr Murphy says political parties need to be in for the long haul. He estimates justice reinvestment will take about 10 years to deliver results.

Move On Directions Bill: Second reading speeches continued

Hansard | NSW Legislative Council | 24 May 2011

The Hon. AMANDA FAZIO [3.15 p.m.]: In my view the Law Enforcement (Powers and Responsibilities) Amendment (Move On Directions) Bill 2011 is unnecessary because the powers it seeks to introduce by this legislation already exist in other legislation. I take this opportunity to express my concern about the potential for abuse of this legislation. People should be aware that the changes proposed by the legislation will impact disproportionately upon homeless people, young people and Indigenous people. In the longer term, as with similar provisions of the past, the bill will serve no common good while in the meantime causing unnecessary suffering.

The Hon. Marie Ficarra noted disparagingly that Labor dismantled the Summary Offences Act. I personally believe that that was one of the best things done by Neville Wran when he was the Premier of New South Wales, because the Summary Offences Act was used by the police to discriminate against people in the lower echelons of society, people who had problems with alcohol consumption but who were not necessarily causing any difficulties, people who did not have a lot of cash on them, people who for one reason or another were deemed to be unsuitable, and people who were at the bottom of the pecking order in society. Labor members should be proud that Neville Wran dismantled the Summary Offences Act.

Is a policeman's life worth more?

Michael Duffy | SMH | May 24, 2011

Premier Barry O'Farrell announced at the weekend that this week the government will introduce a bill to make life sentences mandatory for people who murder police officers.

At the moment the minimum non-parole period is effectively 25 years.

With all due respect to police, who do an important and sometimes brave job, it seems odd that their lives should be valued so much more highly than those of the rest of us.

Imagine a scenario where someone is being robbed at knifepoint and a police officer, trained, equipped and paid to prevent crime, intervenes and is stabbed to death. Now imagine the same scenario where a member of the public intervenes and meets the same fate. Why should their death be punished less severely? In each case there has been a tragedy and a death, as well as a great loss to family, friends and the community.

One argument in favour of the new bill is that police officers represent the rest of us, and therefore an attack on one of them is an attack on the security of the whole society and deserves to be punished more severely. It is also the case that murders of police usually occur when they're trying to stop a crime, whereas murders of other people (despite my hypothetical above) usually occur in other circumstances. And murders of people trying to prevent a crime arguably deserve a higher punishment than those that occur for many other reasons.

I accept that argument. What I have difficulty with is the assumption that the punishment ought to be so much more extreme.

The Supreme Court Declares California's Prisons Overcrowded

Andrew Cohen | The Atlantic | May 23, 2011

Monday's ruling calls for the early release of thousands of the Golden State's inmates

The United States Supreme Court's ruling Monday requiring the early release of tens of thousands of California prison inmates may be, as Justice Antonin Scalia wrote in his fiery dissent, a "staggering" and "radical" event in the annals of law. But it comes as no surprise to people (in and out of the criminal justice system) who long have been chronicling atrocious prison conditions around the country. And it surely marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.

It was left to Justice Anthony Kennedy, a native of Sacramento and a graduate of Stanford University, to finally do the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions. In Brown v. Plata, one of the most important and contentious cases of the term, Justice Kennedy provided the critical fifth vote, the swing vote, to affirm a rare affirmative injunction issued by a special three-judge panel ordering as a last resort some 37,000 prisoners to be released through a variety of measures.

Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).

Shoebridge and Dixon on Mandatory Sentencing

"The Wire" | Radio 2SER | 23 May 2011

People who are convicted of killing police officers in New South Wales could be facing a mandatory life sentence if a new government bill is passed. Premier Barry O’Farrell, announced the bill over the weekend, saying that the liberal party has been committed to the policy since 2002. Mandatory sentencing revokes the powers of a judge to interpret facts based on individual circumstances, and some say it can promote a ‘one size fits all’ approach. Criminal law experts are concerned that the measures will lead to injustice and won’t deter criminals from committing offences. Featured in story: Dean of Law University of New South Wales, Professor David Dixon, Greens MP David Shoebridge

Life sentences won't do justice

Editorial | SMH | May 24, 2011

THE O'Farrell government's pursuit of mandatory life sentences for those convicted of murdering police makes no sense. Like most serious crimes, the offence has many gradations - from cold-blooded premeditated execution through to irrational, spur-of-the-moment violence. No one suggests the state does not owe police a high duty of care or that the taking of a police officer's life should not be harshly punished. But exempting the murder of a police officer from the application of judicial discretion goes beyond enshrining police in a privileged legal status that holds a police officer's life is more precious than that of other citizens, including those called on occasionally to put themselves in harm's way so that others can be safer.

The exemption goes to the issue of legal effectiveness. If the murder of police does not warrant a judge's cool and wise weighing of factors of criminal severity and circumstance, why should we bother with judicial discretion in sentencing for any offence? Simply apply a mandated punishment to fit crime categories across the board, as was tried in NSW with such spectacular failure in the 1890s. Indeed, that initiative was promptly revoked when colonials came to recognise that punishments exceeded the crimes.

The government suggests none of us should be surprised by its announcement of legislation this week to ensure future convicted murderers of police are never released from jail. The Premier said it had been Coalition policy since 2002. But that is only one element of public expectation because the Attorney-General, Greg Smith, promised before the election, and seemingly authoritatively, to end the law-and-order auction that traditionally preceded NSW state polls.

Like his former boss Nick Cowdery, Smith must know that the singling out of murdered police is little more than a sop to the police union and others whose antagonism to judicial discretion appears predicated on the strange notion that being locked away in a jail for several years is a cakewalk, that any sentence short of ''never to be released'' is an incentive to do evil, that the dead are dishonoured and justice is denied if their killers do not cop an eye for an eye.

Smith served as a deputy to Cowdery when the latter was the NSW director of public prosecutions. Now the master admonishes the apprentice. ''It is surprising that a lawyer with Greg Smith's experience would support a retrograde move towards mandatory sentencing knowing that it produces injustice and has no effect in preventing crime,'' Cowdery said.

Welcome to the realpolitik, Mr Smith.

Critics say proposed laws won't stop cop killings

Sarah Dingle | ABC Online | 23 May, 2011

A New South Wales Government plan to make life sentences compulsory for people who murder police officers has worried the state's former director of public prosecutions and civil liberties advocates.

The Government will this week introduce legislation that says anyone convicted of murdering a police officer would automatically be sentenced to life in jail. At the moment there are mandatory 25-year sentences for people convicted of murdering police officers or other public officials.

Australian police unions have welcomed the move, saying officers in other states should get the same protection.

But the former NSW director of public prosecutions, Nicholas Cowdery QC, says there is no evidence this will deter criminals and that it takes away courts' independence.

"This kind of offence [is] going to be committed in the heat of the moment in an atmosphere of great drama and tension," he said.

"People aren't going to stop and think, 'oh dear, if I do this and if I'm caught and if these circumstances are satisfied I will end up with a life sentence, I'd better not to do it'."

Brett Collins, spokesman for civil rights group Justice Action, agrees the move will not work.

"You wouldn't save a single policeman," he said.

"To suggest that people wouldn't be killing policemen because they would think carefully beforehand and think 'oh I've got a mandatory life sentence' is not what happens."

Mr Collins says judges should be free to sentence as they see fit. He says the murder of officers does not happen often, but when it does it tends to be harshly dealt with by the judiciary.

"This is putting wrong values on the values of life. The values of life, of course every person's life, is a sacred thing," he said.

"And to suggest a policeman's life is of more value than another public servant's or someone else who is very vulnerable is wrong."

The Australian Lawyers Alliance says mandatory life sentencing has not acted as a deterrent to police killings overseas. Its director Greg Barns says he will be writing to NSW Attorney-General Greg Smith over the lack of discretion for the courts.

"Mr O'Farrell has said that this will act a deterrence. It has proved to be no deterrence in the United States where mandatory life sentences for police killers has been in place since the 1970s," he said.

"In five of the past 10 years in the United States, the FBI says we've had high rates of killing."

Cowdery lashes mandatory life for police killers

Anna Patty | SMH | May 23, 2011

NICK COWDERY, who retired as the state's chief prosecutor last month, has accused the NSW Attorney-General, Greg Smith, of reneging on his pre-election promise to end the ''law and order auction'' - the political tradition of promising to increase punishments and fill jails.

His comment was in response to the announcement by the Premier, Barry O'Farrell, yesterday that the government would introduce a bill this week to make life sentences compulsory for people who murder police.

Mr O'Farrell said the Coalition had been committed to the policy since 2002.

Mr Cowdery, who was Mr Smith's boss at the Department of Public Prosecutions, said the law would lead to injustice.

''It is surprising that a lawyer with Greg Smith's experience would support a retrograde move towards mandatory sentencing knowing that it produces injustice and has no effect in preventing crime,'' he said.

Mr Cowdery, who retired as head of the DPP last month, said judges needed discretion in sentencing to ensure the punishment fitted the circumstances of the crime and the criminal. Mandatory sentencing could result in a penalty outweighing the crime.

''When you move to serious offences, the principles of sentencing require that in any particular case a wide range of factors must be taken into account to get a just penalty,'' he said. ''The prescription of mandatory sentences in advance … makes the doing of justice … impossible.''

Mr Cowdery said a mandatory sentencing law was contrary to Mr Smith's pre-election promise to end the law and order auction.

Cop killers will get mandatory life term: O'Farrell

SMH | May 22, 2011 

The NSW government will this week introduce new legislation that will ensure anyone who murders a serving state police officer receives a full life sentence, Premier Barry O'Farrell says.

"It's unacceptable to me... to the community and others, that police who are murdered don't have those responsible sent to jail," Mr O'Farrell told reporters in Sydney today.

"This is about ensuring that there's the strongest possible message.

"Those who murder police will be locked up for life."

A life sentence would mean for the rest of the convicted killer's natural life, NSW Emergency Services Minister Michael Gallacher said.

"This fulfils a long commitment we've given to the men and women in the NSW Police Force," Mr Gallacher added.

John Carty, whose police officer son David was murdered in Sydney in 1997, supported the plan.

"David was attacked by 25... I call them men but they're vermin from hell as far as I'm concerned," Mr Carty said.

"I'm very happy to be here today and say it's good legislation."

It remains unclear which parties will support the legislation, due to be tabled in the state parliament in coming days.

Mr Gallacher said he believes the NSW Greens would not be supportive of the bill.

Do graffitists get off too lightly?

The Question | SMH | May 21, 2011

THE LAWYER NICHOLAS COWDERY

GENERALLY, no, I don't think so - and there are real limits to what we can do about them, anyway. The Attorney-General says that graffitists are at war with the community and that they should go to prison - but prison has not stopped any wars so far and it is not the best remedy in most cases.

Rather than being soft or hard, light or heavy after the event, we need to be smarter in dealing with the causes and effects. People who are (understandably) offended by graffiti or whose property is damaged by it should still not expect their feelings to dictate the way the offenders are dealt with. The world and its inhabitants are more complicated than that, as the criminal justice system recognises.

If graffiti is done without the consent of the property-owner, then (artistic or not) it is intentional damage to property and ''graffiti vandal'' is an apt description. But we are still not at the jailing point. Imprisonment is the punishment of last resort, not first reaction.

Who are the graffitists? By and large they are juveniles and young adults. Their brains have not matured. They undertake this criminal conduct for a wide range of reasons: a desire to be known, identified and approved by their peers; competition with or other pressure from peers; lack of legitimate purpose leading to the thrill of offending and escape; resentment of property owned by others; an attitude that state-owned property is fair game and nobody really suffers; maybe just because they can.

Most of the offenders are unlikely to be caught and most are unlikely to offend again. Even the vast majority (70 per cent) of juvenile offenders who are prosecuted never reappear in a children's court - another 15 per cent appear twice. So why should any heavier outcome be required for the small percentage who are caught? Reoffending rates for juveniles are not affected by imprisonment - it has no deterrent effect - so what would a heavier response achieve?

Prevention is best. Keep the possible offenders lawfully occupied and protect the property - by lights, barriers, CCTV, police and security patrols, surface coatings - whatever it takes. And promptly remove graffiti when it happens - by using offenders, if that can be arranged.

Nicholas Cowdery is the former NSW director of public prosecutions.

THE DIRECTOR TAMARA WINIKOFF

I AM not going into bat for every kid with an aerosol can who wants to leave a souvenir of their existence in places where mere mortals would fear to tread, climb, dangle, squeeze or levitate, as much as I might admire their gymnastic prowess and fearlessness in the face of potential imminent death. But skilful street art is another matter.

Broadly speaking, street art falls into these categories: art for art's sake; and social and political observations; or both.

Some of it is simply playful or beautiful; the other is perpetuating the legacy of political commentary that we know has appeared in the street at least from the time of the Roman Empire. Either can be challenging and push the boundaries of our collective certainties.

It is not necessarily going to give everyone instant gratification and may be asking us to excavate under the surface of meaning. But what a delight it is to spot the sly little cartoon down at ground level or a witty, irreverent visual pun as you round an unexpected corner. It can add delight and zest to one's day. If it sparks a good, juicy debate, it's doing us an intellectual service.

Art in public should be part of everyone's experience of a lively, cosmopolitan city. Who does not savour the pleasure of travelling to old cities in other parts of the world to get an insight into their culture, past and present, through the legacy of art and architecture? The public space that we all share is of our own making and a reflection of the power structures that determine the expression of who we think we are. The palette of the urban environment is as diverse as are humans, and thus is at times hotly contested.

What seems to get up the noses of some of the city fathers is that street art has not gone through the exhaustive process of climbing up and down the bureaucracy for sign-off at every level. It has not been authorised and possibly sanitised. But we need to remember that mostly it is ephemeral and self-regulated for quality by the local street artist communities.

It is interesting that the state's nannies are usually much more protective of our collective sensibilities than the community itself.

Graphic marking of ceremonial sites is part of many ancient cultures, including our own indigenous rock art.

Street art is a great Australian democratic tradition and we should be encouraging and supporting the best it has to offer.

Tamara Winikoff is the executive director of the National Association for the Visual Arts.

Art Crime: Graffiti Wars

Matthew Newton | The Crime Report | 22 February 2011

Law enforcement agencies, judges and politicians around the country are stepping up their battle against graffiti artists. But the crackdown may only have emboldened them.

In March 2009, a man identified by Pittsburgh Police as “HERT,” the city’s second most-wanted graffiti artist, entered the Allegheny County Courthouse for an appearance stemming from a prior arrest.

But when he arrived, he was informed that police also had warrants for his arrest on 69 misdemeanors and four felony counts of criminal mischief based on estimated damages from vandalism caused by the 22-year-old’s alleged activities of spray-painting his tag on public and private buildings, railroad properties, and nearly a dozen neighborhoods in and around Pittsburgh’s downtown corridor. HERT was then handcuffed and escorted from the courtroom.

TV cameras were there to capture the moment, and Detective Daniel Sullivan of Pittsburgh Police Bureau’s Graffiti Task Force, made sure the media knew the significance of the arrest.

“He was the number-two tagger in the city, hitting more than 100 pieces of property, and that doesn't include outside boroughs,” Sullivan told reporters, adding that HERT had caused an estimated $212,000 in damages to private and public property during his graffiti career.

The case of HERT, who is still awaiting trial, illustrates what some observers believe is an increasing crackdown on graffiti across the country. While, nationwide statistics on graffiti crime do not exist, the reallocation of police department budgets and resources suggests that cities are increasingly using prosecutions as a weapon to end the practice. For example, Graffiti Tracker, an Omaha, Nebraska-based company, which investigates graffiti crimes under contract with law enforcement agencies or sells them analysis software, is doing a thriving business. According to Timothy Kephart, Graffiti Tracker’s CEO, the company has over $1 million in contracts with police departments in 45 cities, towns and municipalities.

And more cities like Pittsburgh have created “vandal squads” dedicated to capturing high-profile graffiti artists, similar to the force New York City instituted decades ago.

But the subtext of this battle is cultural.

Move on Directions Bill: Second reading speech

Full Day Hansard Transcript (Legislative Council, 10 May 2011, Proof)

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) AMENDMENT (MOVE ON DIRECTIONS) BILL 2011

Bill introduced, and read a first time and ordered to be printed on motion by the Hon. Michael Gallacher.

Second Reading

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [11.10 a.m.]: I move:

That this bill be now read a second time.

Alcohol-related violence and antisocial behaviour have been a source of concern to the community in New South Wales and Australia-wide. The Government is seeking new ways to address this complex issue. The Bureau of Crime Statistics and Research [BOCSAR] identified a significant increase in alcohol-related incidents of offensive behaviour between 2005 and 2009. In 2008 the BOCSAR also reported a statistical increase over a five-year period in alcohol-related assaults and incidents using a glass or bottle as a weapon. Alcohol-related injuries pose a significant cost to the health system. A study conducted at St Vincent's Hospital emergency department in 2004-05 calculated that up to $1.38 million per year was spent on alcohol-related injuries and intoxication alone.

People are entitled to enjoy a night out without fear of having their evening ruined by drunken and violent hooligans. That is why the Coalition Government is proposing the implementation of the first stage of the Making Our Streets Safe Again policy by strengthening existing move-on powers. Current move-on powers in section 198 of the Law Enforcement (Powers and Responsibilities) Act restrict police to giving directions to persons in groups of three or more intoxicated people. The proposed amendment enables police to give directions to intoxicated individuals regardless of whether they are by themselves or part of a group. Move-on powers give police an effective enforcement tool to address drunk and disorderly behaviour before it becomes a public safety issue. Giving police the power to encourage intoxicated individuals to go home will help to reduce the incidence of violence around entertainment and licensed venues.

The current thresholds in relation to the likelihood of the intoxicated person causing injury, causing damage or giving rise to a risk to public safety will continue to apply. The direction given by the police officer must be reasonable in the circumstances in order to prevent injury or damage or to reduce the risk to public safety. The period during which a person may be directed not to return to the public place is not to exceed six hours. While our election commitments focus on alcohol-related violence, we recognise that antisocial behaviour can be the result of the consumption of alcohol or drugs, or both. The current definition of "intoxicated" in section 198 covers the effects of both alcohol and drugs. A person is intoxicated for the purposes of issuing a move-on direction when:

(a) the person' speech, balance, co-ordination or behaviour is noticeably affected, and

(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug.

The only substantive amendment in the bill amends the Law Enforcement (Powers and Responsibilities) Act 2002 to omit from section 198 (1) "in a group of 3 or more intoxicated persons". This amendment means there is no longer a requirement for the intoxicated person to be in company with other intoxicated persons for the direction to apply. The amendment authorises police to move on intoxicated individuals regardless of whether they are by themselves, with another person or in a group of people. This bill is the first important step towards making the streets of New South Wales safe again. Police will be able to direct intoxicated persons to move on before trouble starts. Strengthening the existing move-on powers will lay the groundwork of the next stage of our election commitments relating to intoxicated and disorderly behaviour. The Government is committed to ensuring that intoxicated and disorderly behaviour on our streets will not be tolerated. I commend the bill to the House.

Debate adjourned on motion by the Hon. Amanda Fazio and set down as an order of the day for a future day.

O’Farrell Government To Strengthen Police Move-On Powers

Press Release | NSW Government | 9 May 2011

NSW Premier Barry O’Farrell and Minister for Police and Emergency Services Michael Gallacher today announced strengthened police move-on powers to crackdown on anti-social behaviour.

“Under these new laws to be introduced by my Government today, fulfilling yet another election commitment, Police will be able to move-on intoxicated individuals who are acting in a way that may cause harm to themselves, to others or to property,” Mr O’Farrell said.

“Under the current law, move-on powers can only be used for groups of three or more under the current law,” he said.

“We have to change the culture of alcohol related anti-social behaviour in NSW, and that change starts with making people personally responsible for their own actions.

“The Police are sick of being punching bags on a Friday and Saturday night in our major entertainment districts,” he said.

Mr Gallacher said the community is all too familiar with the problems and the destructive nature which can be caused by a single drunk.

“The offending individual may be shouting and swearing under the windows of people trying to sleep. He or she can be seen any Friday and Saturday night walking recklessly out into traffic or stumbling around railway stations,” Mr Gallacher said.

“We are changing this so Police can give a direction to move on intoxicated individuals as well as groups. The laws can only be exercised in public places.

“This is aimed at those individuals whose excessive drinking makes late night entertainment areas unpleasant and, often, positively dangerous.”

Mr Gallacher said the new laws will be a valuable preventative measure as, by complying with the police move-on direction a person will be able to avoid a charge of being 'intoxicated and disorderly' – a new summary offence which the NSW Government will also shortly introduce.

“With this simple but important reform, the capacity of police to keep our streets and other public places safer will be considerably strengthened,” Mr Gallacher said.

Law and Order Auction Commences

Press Release | NSW Greens, David Shoebridge MLC | 9 May 2011

New legislation to be introduced by the O’Farrell Government will give police extraordinary powers 30 years out of date, and, according to NSW Greens MP and Justice spokesperson David Shoebridge will unfairly target disadvantaged members of the community.

“Police already have the powers to deal with people who have had too much to drink and are causing trouble. This legislation is an extreme and unnecessary extra step.

“There is scant evidence other than tabloid and shock-jock scare-mongering papers that police need further powers in this area.

“The ability for the police to force an individual to move from a public space is not something that should be lightly considered in a free society. These laws are more at home in a repressive closed society than in NSW in 2011.

“The Move On Directions Bill will essentially re-introduce the drunk and disorderly provisions which were sensibly removed from the statute books in 1979. We are seeing a real step backwards.

“This legislation will give police wide powers to hassle and intimidate people at their discretion. We might get more arrests, but we’re not going to get a better society.

“At police discretion, people returning from a dinner party, a sporting event or even the theatre will be a police target if they’ve had a couple of drinks, or take offence to the police harassing them.

“Previous laws of a similar nature have been shown to have a disproportionate effect on the most vulnerable members of the community, homeless people, young people and Aboriginal people.

“The Coalition is wasting no time at all in trying to take NSW back to the future,” Mr Shoebridge said.

The medium is the message

THEODORA | Justinian | 2 May 2010

Fitting the message to the messenger ... Michael Pelly, Ruddock's former spin doctor, lands a gig with the new AG in NSW, Greg Smith ... Then there's that biography of Smiler

Former journalist Michael Pelly has ditched his columnising for The Australian only to fetch-up as NSW Attorney General Greg Smith's flack merchant.

Not only that but he has persuaded Smiler Gleeson to give him access to his treasure trove of files with a view to penning a biography of the great jurist.

Memorably Pelly worked as Commonwealth AG Phil Ruddock's spin doctor where, among other glamorous tasks, he put his shoulder to the wheel of the Howard government's campaign to demonise David Hicks and run a beefed-up war on terror campaign.

One of his first duties as Smith's flack was to funnel information to his old organ, The National Rupert, spelling out his new boss' eccentric views about shield laws for journalists.

A pressing topic, to be sure.

Essentially the NSW attorney general doesn't like the Greens' input into the federal amendments to the Evidence Act, which extended the reptiles' rebuttable presumption against fingering sources to bloggers and "citizen journalists".

NSW will be following Soapy Brandis' model and will confine the protection to the "mainstream media", even though it appears the mainstream media is a steadily dwindling force in the land.

The other complication is that the mainstream media itself hosts numerous bloggers. Are those bloggers in or out of the tent?

Smith came up with a quotable rationalisation for shutting out the modern media in favour of the old world:

"The bloggers are coming from all areas - some are activists in particular causes, some may be criminals doing some blogging to block or deflect police and to con politicians and the media."

Que?

What with massaging the message for Smith and delving into Smiler's inner secrets, Pelly will be a busy muffin.

Director's jailhouse shock

Andrew Taylor | SMH | May 8, 2011

FILMING inside the Adelaide Women's Prison was ''a really big coup'' for director Beck Cole.

But she said: ''To be honest, I didn't realise how affected I'd be by it.''

Indeed, walking into the prison on the first day of shooting Here I Am was a sobering moment for Cole and her Aboriginal cast. ''It was a big wake-up call for the crew and Shai [Pittman] to be locked up in a cell,'' she said.

Here I Am will open this year's Message Sticks indigenous film festival, which premieres at the Sydney Opera House on Thursday before touring around Australia.

The festival, programmed by Bran Nue Dae director Rachel Perkins, includes films, documentaries and shorts about indigenous people in Australia and overseas, performances by Ursula Yovich and the children's stage show I See.

Written and directed by Cole, Here I Am tells the story of Karen, played by Pittman, a young Aboriginal woman who leaves prison determined to turn her life around. But she is estranged from her daughter and mother Lois, played by Marcia Langton, who refuses to trust her.

Cinema audiences are increasingly receptive towards indigenous storytelling, Cole said. ''They get it. It's not ooga-booga and freaky.''

Cole described the disproportionately high numbers of indigenous people in custody as ''a really negative part of the Aboriginal experience in this country''.

Here I Am looked at ''the reasons why as an individual you end up in prison'', she said. ''The reasons you've neglected your children, taken drugs, done all this shit and f---ed up your life.

''Also you have to take a look at yourself. You can't point a finger at other people. It's not the government that didn't feed your children or make you do drugs or break into houses. Subtly, it's about taking responsibility for your own life.''

Cole lives in Alice Springs with partner Warwick Thornton, the director of Samson & Delilah and the director of photography on Here I Am.

She said it was an exaggeration to say levels of violence in the Alice were increasing: ''We've always been exposed to what you're reading about in newspapers now.''

Perkins said Message Sticks did not have a theme. ''We just show the best work.'' The festival also features Ivan Sen's Shifting Shelter 4, the latest in a series that has followed four young Aboriginal people living in rural NSW since 1995.

Perkins said several films, including Sen's documentary and an Alaskan drama about Inuit teenagers, On the Ice, were about ''young people growing up hard and coming from dysfunctional families''.

But Perkins said she disagreed with Here I Am producer Kath Shelper's assertion that it is the first feature to focus on urban Aboriginal women in a modern setting.

''I don't agree. I've made a film about Aboriginal women,'' said Perkins, who directed 1998's award-winning Radiance, about three indigenous sisters who reunite for their mother's funeral.

Winston Churchill, in the House of Commons, 25 July 1910.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted criminal – a constant heart-searching by all charged with the duty of punishment – a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation and sign and proof of the living virtue in it."

An unusual meeting of minds

Kate McClymont | SMH | May 7, 2011

What brings a senior lawyer and a disqualified punter together? Kate McClymont reports.

WITH only 200 metres to go, Bold Glance looked a dead certainty to win the Eagle Farm handicap. But racegoers watched with a mix of astonishment and horror as the gelding was easily run down. ''I've seen more vigour on a merry-go-round horse,'' fumed one punter.

The fallout from that race in February has rocked the racing world and sent shivers down the spines of those concerned about the suspicion of widespread fixing in Australian sport.

Last week one of the nation's biggest sports punters, Steve Fletcher, who bets $700,000 a week, was disqualified from betting for a year by Racing Queensland after an investigation found he had prior knowledge that Bold Glance's jockey, Bobby El-Issa, would not ride to win. Mr Fletcher had backed the winner and bet that Bold Glance would not win. The inquiry found he was a close associate of the jockey, who has been disqualified for two years.

But if his friendships with jockeys and footballers have raised eyebrows (the troubled AFL player Brendan Fevola owes him $20,000), so has his long-term friendship with the senior Crown prosecutor Margaret Cunneen, SC, whose name is being mentioned as a possible candidate as the NSW Director of Public Prosecutions.

Ms Cunneen became a cause celebre when she was continually overlooked in her quest to be made a silk. When she finally succeeded in 2007, Mr Fletcher was on hand to celebrate.

Yesterday Ms Cunneen was keen to play down the friendship, saying: ''I have met him a few times. Quite frankly I don't want to have any public connection with him. That wouldn't assist me at the present time at all.''

Ms Cunneen said her son Steve had worked for Mr Fletcher but no longer did so because of Mr Fletcher's disqualification. But Mr Fletcher happily confirmed he and Ms Cunneen were good friends and he had seen her as recently as Thursday, when she dropped her son off for work.

Ms Cunneen said in her position she had made it a strict policy over 35 years never to have anything to do with ''shady'' people. When reminded that she had attended the book launch of the twice-jailed former detective Roger Rogerson in 2009, she said: ''But I know Roger independently. I've known him since he was a detective … He was never convicted of anything while he was a police officer.''

Arrest powers flagged in public housing crackdown

Katrina Bolton | PM | 5 May 2011

The Northern Territory Government has proposed giving public housing safety officers the power to arrest and detain people.

Under the plan, 20 officers would be employed to patrol public housing in Darwin and Alice Springs from early next year.

Housing Minister Chris Burns says they would have the power to ban people from public housing for up to 12 months and to confiscate alcohol.

He says they will also act as witnesses in cases where tenants may be evicted from public housing.

When asked what would happen to evicted tenants, Mr Burns said: "Frankly, I don't care."

"If people are acting up, they are living in subsidised accommodation, subsidised by the taxpayer," he said.

"If they are not behaving, if they are making people's lives a misery I don't really care where they go to."

But the Police Association's Territory representative Vince Kelly is incensed.

"I am appalled that the Northern Territory Government is contemplating giving police powers to private security guards," he said.

"Private security guards do not have the same level of accountability or training or oversight as sworn police officers.

Internet Kills Jury

David Mallard | New Matilda | 3 December 2010

Short attention spans and shonky research: some commentators worry that the internet threatens the jury system. David Mallard weighs up the evidence

People tend to enjoy the benefits of technology. Advances in computing and the internet have transformed our access to information and our ability to communicate and collaborate. But it seems people also tend to have concerns about how technology transforms the ways we think, behave and interact. What’s more, these concerns feed predictions that some of our long-standing societal institutions are in grave danger. But could these predictions sometimes serve to mask the underlying flaws in those institutions?

Take, for example, a recent lecture delivered by the Lord Chief Justice of England and Wales, Lord Judge (yes, really). Lord Judge warned that "if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop." His warning was triggered by cases in which it has been discovered that jurors used the internet to gather information about a case.

Lord Judge also raised concerns that jurors’ ability to listen attentively during a trial may be compromised because children now learn by "absorbing information from machines", and that the unregulated nature of social media such as Twitter might prejudice jurors — either through inaccurate information being tweeted from within the courtroom, or from advocates sending messages from without. But are these sorts of existential threat to the jury system really so unprecedented?

Glenn Greenwald on drug decriminalisation in Portugal

Dear Rapist…

Liz Seccuro | The Guardian | 30 April 2011

Twenty years after her assault at a college party, Liz Seccuro received a letter of apology from her attacker. The correspondence that followed led her to pursue justice at last

It was late summer 2005 and we were about to set out on an extended vacation with our two-year-old daughter, Ava. "Hey, you got a letter," said my husband Mike, tossing it to me like a Frisbee. It smelled faintly of vanilla, nice paper. I ripped it open and began to read the very precise, almost feminine cursive script.

Dear Elizabeth:

In October 1984 I harmed you. I can scarcely begin to understand the degree to which, in your eyes, my behaviour has affected you in its wake. Still, I stand prepared to hear from you about just how, and in what ways you've been affected; and to begin to set right the wrong I've done, in any way you see fit. Most sincerely yours, Will Beebe

In 1984, I arrived, like any other student, at the University of Virginia in Charlottesville. An only child, I was the first in my family to attend college. My parents were thrilled, although the university was far from our home town, a suburb of New York City. I had graduated top of my high school class and was prepared to make something great of myself. But those hopes and dreams were dashed about five weeks later.

A dorm friend, desperately wanting to join a fraternity, begged me to be his date to a party at Phi Kappa Psi, a massive pile of Georgian bricks and white columns at the head of fraternity row. Reluctantly, I climbed out of my sweatpants and donned a denim miniskirt, long-sleeved crew-neck sweater, navy blue flats and a pearl necklace. And then we set off on our five-minute walk with a few other friends from our dorm.

We arrived to the din of a party in full swing – a band, kegs of beer, jubilant collegians. Nothing out of the ordinary, but for the fact that my date was gay and, back in 1984, being gay was not as openly accepted as it is today. He needed to "pass", so I stuck to his side as we toured the property and listened to the brothers talk about tradition, academia and the honour that was bestowed upon the lucky few who would be chosen as Phi Kappa Psi brothers.

We got separated. My date was invited to smoke pot with some brothers. I had never done so, nor did I want to start. I decided to wait in the second-floor living room, thinking I'd be safer there than walking home alone. I sat on a sofa near a makeshift bar where two brothers, acting as bartenders, assured me that my friend would be back soon. And would I like a drink?

Not wanting to seem square, I said yes.

Ineffectual bipartisanship ruins social policy

Noel Pearson | The Australian | March 26, 2011 

RECENTLY Mal Brough, former minister for indigenous affairs in the Howard government, told The Australian that the Northern Territory intervention was "just another failed program" because Labor had maintained the policy only for political reasons.

In essence Brough was saying that Labor's heart was not in it and, as a result, the intervention's aims had not been realised.

Brough is correct that the intervention has fallen short. From afar it appears some good things have come out of it, but on the whole it has not worked.

Had he remained minister he would have shouldered full responsibility for its implementation. From my experience of Brough, although he was a determined leader, he was amenable to advice and deeply committed.

Whatever people might have thought about the political motivations behind the intervention, for Brough it was always Aboriginal suffering that was uppermost.

Having said that, I think the present minister, Jenny Macklin, is equally committed and her extension of the income management reform principle to the wider Australian community is testament to that commitment. She has been steadfast in her support for our reforms in Cape York Peninsula, which she extended when she supported our schooling reform plan.

Brough and Macklin both erred in a fundamental respect in relation to the Territory, whereas they were correct in their support for our endeavours in Cape York during these past three years.