The Sunday Telegraph | November 25 2012
ATTORNEY General Greg Smith will stick to his plans to reform bail laws despite police opposition, saying only those likely to abscond, re-offend or hurt someone will be put in jail and the rest will walk free.
Mr Smith believes bail laws are too complex and so tough they "almost made bail an alternative form of imprisonment". Critics fear changes will give criminals a "get out of jail free" card.
In June, the Law Reform Commission suggested presumptions for or against bail depending on offence should be scrapped and the accused should be released unless they are a risk of absconding, reoffending or harming someone.
It was concerned that too many people, particularly young and indigenous, are in jail even though they have not been convicted of a crime.
Mr Smith told The Sunday Telegraph that the government's response to the review, expected this week, would be "sympathetic" to the report.
"That will be the test. If the court is satisfied that any of those things might happen, they will be bail refused. Otherwise they will be bail granted.
"The act and the ultimate act will draw much from the learning that went into the review. It won't strictly stick to many of the recommendations but it will be sympathetic to some of the principles espoused in the review."
He said there would be announcements on specific presumptions, but would not be drawn further.
Police Commissioner Andrew Scipione is opposed to the changes, saying the current laws work well, as is the Police Association, which warns that watering down bail conditions would endanger the community.
Premier Barry O'Farrell has pledged cabinet would not weaken bail laws.
Smith denied suggestion colleagues have been hostile about the changes, saying they have given him "magnificent" support. "The report will be a reasoned report and it will be a unanimous view of the cabinet and the government."
But the Police Association warns that change to the bail laws would give criminals a get out of jail free card.
"Tough bail laws are pivotal to a safe community and we are hopeful that the government will not move towards weakening these protections which are designed to keep criminals behind bars, he said.
"The recommendations made by the Law Reform Commission would put the community at risk if they were implemented."
"Bail laws should help make our society safer. Any watering down of community protections by allowing persons accused of serious and violent crimes to be released on bail would be out of touch with community expectations."
The Law Society NSW supports reforms to the bail laws. "We were very pleased with the report," said President Justin Dowd.
Sunday, November 25, 2012
Tuesday, September 11, 2012
The Right to Silence Takes a Beating in NSW
Adam Fletcher | Castan Centre for Human Rights Law Blog | September 10, 2012
Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”
The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”
However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:
Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).
Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.
According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”
Is this really something we want for Australian law?
The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.
Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.
The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.
It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.
The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.
In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:
Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.
The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.
Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?
Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.
In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.
Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”
The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”
However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:
- The former has the Human Rights Act 1998 which implements the European Convention on Human Rights and
- in England, Wales and Northern Ireland, the Government provides duty solicitorsat major police lock-ups to ensure procedure is followed and a suspect’s other rights are respected.
Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).
Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.
According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”
Is this really something we want for Australian law?
The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.
Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.
The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.
It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.
The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.
In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:
Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.
The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.
Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?
Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.
In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.
Dobbing mothers unite for drug reform
Lisa Pryor | SMH | 11 September 2012
Parenthood has made Lisa Pryor more certain our drug laws need to be reformed. When a child gets in trouble with drugs, help is a lot more effective than a criminal record.
"Surely having children of your own has made you think twice about decriminalising drugs?" This is a question I get asked a lot, as someone who advocates for drug law reform while being the mother of two young munchkins.
The implication is that your views should change once you become an upstanding and responsible parent whose drug of choice is caffeine, and whose social life revolves around rhyme time at the local library. As if parenthood should soften you with regard to your own flesh and blood, while hardening you towards the rest of the world, especially towards illicit drug users.
My answer to this question is "no, quite the opposite". Having responsibility for young children who will one day be young adults has made me more certain that our drug laws must be reformed and I'd like to explain why.
As a parent I would love to see Australia adopt the model of decriminalisation which has been working so well in Portugal for more than 10 years now.
Let me tell you a little bit about how it works. In July 2001 Portugal abolished all criminal penalties for using and possessing small quantities of drugs. When the police catch someone with a zip lock bag of pills or powder folded in tin foil, there are still consequences. The drug user may be required to attend a "dissuasion tribunal" where the seriousness of their habit is assessed. If the tribunal finds the person before them is an addict, they can then be referred to rehabilitation. And that's another key thing about the reforms in Portugal. They improved funding for drug treatment and made it more accessible.
What I love most about this model is that it empowers families to work with the authorities if a child gets into serious trouble with drugs, confident that they would be given help rather than a criminal record.
In other words the Portuguese system appeals to me as a dobbing mum. If a young person in my life was abusing drugs, I would feel confident working with the police to get help. This is exactly the opposite of what I would do with the system as it stands in Australia. I would never recommend a parent dob a child with a drug problem into the police as it is likely to make matters worse.
Australian parents are in a terrible bind if they feel a child is developing an addiction to illicit drugs. They may want to intervene, but most know that dobbing a child into the police is not the answer. Motivating a pot head teen to go out and get a job will be even harder if that teen has a criminal record which means they will be rejected out of hand by many employers. As for young adults who try to escape emotional difficulties by taking too many drugs, they will be haunted by even greater troubles if they are forced to spend time in prison with its accompanying traumas.
The Portuguese model is one of the alternatives to prohibition – along with the systems operating in Switzerland and the Netherlands – which is canvassed in an Australia21 report which was released on Sunday.
The report explains some of the improvements Portugal has enjoyed as a result of their bold reforms. Problematic drug use has decreased. There are fewer overdoses. Fewer injecting drug users are contracting HIV. Drug related crime has dropped too.
For these reasons and many more, parents like me support decriminalisation. This is not contradictory, nor is it new. A black and white photograph, reproduced on the back of the Australia21 report, shows just how long mothers have been fighting against prohibition. Taken in the United States in 1932, the photograph shows mothers and children campaigning against alcohol prohibition. In earnest uniforms they stand beside a car painted in slogans: "Protect our youth", "stamp out prohibition", "save our children".
The campaign to end alcohol prohibition was supported by mothers because they felt that when the trade in alcohol was pushed underground, it made it easier for young people to access alcohol. Legal saloons risked having their licences revoked if they served alcohol to the underage. But the illegal speakeasies which came with prohibition had no such qualms about underage drinking.
Alcohol prohibition was repealed the year after this photograph was taken. It is time for parents to speak out again.
Parenthood has made Lisa Pryor more certain our drug laws need to be reformed. When a child gets in trouble with drugs, help is a lot more effective than a criminal record.
"Surely having children of your own has made you think twice about decriminalising drugs?" This is a question I get asked a lot, as someone who advocates for drug law reform while being the mother of two young munchkins.
The implication is that your views should change once you become an upstanding and responsible parent whose drug of choice is caffeine, and whose social life revolves around rhyme time at the local library. As if parenthood should soften you with regard to your own flesh and blood, while hardening you towards the rest of the world, especially towards illicit drug users.
My answer to this question is "no, quite the opposite". Having responsibility for young children who will one day be young adults has made me more certain that our drug laws must be reformed and I'd like to explain why.
As a parent I would love to see Australia adopt the model of decriminalisation which has been working so well in Portugal for more than 10 years now.
Let me tell you a little bit about how it works. In July 2001 Portugal abolished all criminal penalties for using and possessing small quantities of drugs. When the police catch someone with a zip lock bag of pills or powder folded in tin foil, there are still consequences. The drug user may be required to attend a "dissuasion tribunal" where the seriousness of their habit is assessed. If the tribunal finds the person before them is an addict, they can then be referred to rehabilitation. And that's another key thing about the reforms in Portugal. They improved funding for drug treatment and made it more accessible.
What I love most about this model is that it empowers families to work with the authorities if a child gets into serious trouble with drugs, confident that they would be given help rather than a criminal record.
In other words the Portuguese system appeals to me as a dobbing mum. If a young person in my life was abusing drugs, I would feel confident working with the police to get help. This is exactly the opposite of what I would do with the system as it stands in Australia. I would never recommend a parent dob a child with a drug problem into the police as it is likely to make matters worse.
Australian parents are in a terrible bind if they feel a child is developing an addiction to illicit drugs. They may want to intervene, but most know that dobbing a child into the police is not the answer. Motivating a pot head teen to go out and get a job will be even harder if that teen has a criminal record which means they will be rejected out of hand by many employers. As for young adults who try to escape emotional difficulties by taking too many drugs, they will be haunted by even greater troubles if they are forced to spend time in prison with its accompanying traumas.
The Portuguese model is one of the alternatives to prohibition – along with the systems operating in Switzerland and the Netherlands – which is canvassed in an Australia21 report which was released on Sunday.
The report explains some of the improvements Portugal has enjoyed as a result of their bold reforms. Problematic drug use has decreased. There are fewer overdoses. Fewer injecting drug users are contracting HIV. Drug related crime has dropped too.
For these reasons and many more, parents like me support decriminalisation. This is not contradictory, nor is it new. A black and white photograph, reproduced on the back of the Australia21 report, shows just how long mothers have been fighting against prohibition. Taken in the United States in 1932, the photograph shows mothers and children campaigning against alcohol prohibition. In earnest uniforms they stand beside a car painted in slogans: "Protect our youth", "stamp out prohibition", "save our children".
The campaign to end alcohol prohibition was supported by mothers because they felt that when the trade in alcohol was pushed underground, it made it easier for young people to access alcohol. Legal saloons risked having their licences revoked if they served alcohol to the underage. But the illegal speakeasies which came with prohibition had no such qualms about underage drinking.
Alcohol prohibition was repealed the year after this photograph was taken. It is time for parents to speak out again.
Wednesday, September 5, 2012
Neighbour can't cop jolly whistle
Gayle Bryant | Heckler | SMH | 5 September 2012
A FRIEND of mine was threatened with an AVO on the weekend. Now, what image has just come into your head? Some violent, uncontrollable loser who lets his fists do the talking? Some drunken yobbo? Try a gentle, non-aggressive man whose only crime is whistling.
No, my fingers didn't slip on the keyboard. I didn't mean to write that my friend enjoys ''wrestling'', or ''wrecking things'', or ''whacking people''. My friend likes to whistle. Not constantly. Just occasionally, when he feels good about the world and has a spring in his step.
On Saturday, however, he was amazed to find that not one, but three police had appeared on his doorstep to tell him his neighbour had complained about this habit. Apparently, my friend was told, his neighbour often hears him whistling as he walks up the path separating their two homes - and this is not OK. My friend was told he can whistle in his own home, but he must not whistle as he walks past his neighbour's front door.
Illustration: Simon Letch
Of all the noises that can be emitted by the body, I would have thought whistling is the least offensive. But now you can be threatened with an AVO if you purse and blow? What next? AVOs for burpers, farters or stomach grumblers?
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Aren't AVOs served when someone is in fear for their safety? How does whistling fit into this category? It demeans their very purpose.
My friend has no intention of changing his behaviour. He told the police that he would see his neighbour in court before he stopped whistling. The fact that three police were sent to pass on the message only added fuel to the fire. Especially, as he pointed out to them, no police had yet responded to his calls to the same station about a stolen bike. I'm guessing a stolen bike hardly raises an eyebrow.
But the novelty of a whistling complaint clearly had the police scrambling for the squad car. They had probably never been called to serve an AVO against a whistler and weren't sure how the perpetrator would react. Perhaps they thought he'd launch an assault on their eardrums by whistling at extreme volume or deliberately off-key. Maybe they thought all the local dogs would come running, resulting in chaos.
Are we becoming so obsessed about being in control of the sounds we want to hear that those we can't control are cause for a complaint to the police? Come on Sydney, why not purse those lips and whistle down the street just as Mark Twain writes in Tom Sawyer, ''with a mouth full of harmony and a soul full of gratitude''.
No, my fingers didn't slip on the keyboard. I didn't mean to write that my friend enjoys ''wrestling'', or ''wrecking things'', or ''whacking people''. My friend likes to whistle. Not constantly. Just occasionally, when he feels good about the world and has a spring in his step.
On Saturday, however, he was amazed to find that not one, but three police had appeared on his doorstep to tell him his neighbour had complained about this habit. Apparently, my friend was told, his neighbour often hears him whistling as he walks up the path separating their two homes - and this is not OK. My friend was told he can whistle in his own home, but he must not whistle as he walks past his neighbour's front door.
Illustration: Simon Letch
Of all the noises that can be emitted by the body, I would have thought whistling is the least offensive. But now you can be threatened with an AVO if you purse and blow? What next? AVOs for burpers, farters or stomach grumblers?
Advertisement
Aren't AVOs served when someone is in fear for their safety? How does whistling fit into this category? It demeans their very purpose.
My friend has no intention of changing his behaviour. He told the police that he would see his neighbour in court before he stopped whistling. The fact that three police were sent to pass on the message only added fuel to the fire. Especially, as he pointed out to them, no police had yet responded to his calls to the same station about a stolen bike. I'm guessing a stolen bike hardly raises an eyebrow.
But the novelty of a whistling complaint clearly had the police scrambling for the squad car. They had probably never been called to serve an AVO against a whistler and weren't sure how the perpetrator would react. Perhaps they thought he'd launch an assault on their eardrums by whistling at extreme volume or deliberately off-key. Maybe they thought all the local dogs would come running, resulting in chaos.
Are we becoming so obsessed about being in control of the sounds we want to hear that those we can't control are cause for a complaint to the police? Come on Sydney, why not purse those lips and whistle down the street just as Mark Twain writes in Tom Sawyer, ''with a mouth full of harmony and a soul full of gratitude''.
Monday, August 27, 2012
Background Briefing: "The big binge"
Di Martin | ABC Radio National | 26 August 2012
More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.
More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.
Listen to the program here.
Monday, August 20, 2012
730 New South Wales investigates changes to the Right to Silence
ABC 730 | 19 August 2012
See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
Sunday, August 19, 2012
Shouting out our right to silence
Charles Waterstreet | Sun Herald | 19 August 2012
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
This particular Bill needs a little more thought
Heath Aston | Sun Herald | 19 August 2012
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
Friday, August 17, 2012
On the right to silence, all the rhetoric is deafening
David Dixon | SMH | 16 August 2012
Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
Uruguay ponders making government legal pot dealer
Pablo Fernandez | Associated Press | 9 August 2012
MONTEVIDEO, Uruguay —
A plan by Uruguay's leaders to turn the government into the nation's marijuana dealer has been presented to Congress, where the idea faces an uncertain fate.
President Jose Mujica's entire Cabinet signed onto the proposed law, which aims to take over an illegal marijuana trafficking business estimated to be worth $30 million to $40 million a year.
The law would have government control marijuana imports, production, sale and distribution, creating a legal market for people to get pot without turning to riskier illegal drugs. The text submitted to Congress on Wednesday declares that the drug war is a failure and that marijuana is only mildly addictive, unlike "cocaine, alcohol, tobacco and psychotropic drugs."
But lawmakers are divided on the idea, even within Mujica's Broad Front coalition of leftist parties and social groups.
Mujica has said he'll push the plan only if it gets at least 60 percent support in polls. An official in the president's press office, speaking on condition of anonymity according to department policy, said the bill isn't expected to advance quickly.
The text says the project's goals include "the normalization and full social acceptance of marijuana use" so that consumers aren't "stigmatized, nor treated as criminals." Instead, it proposes education about the risks of marijuana use. The presidency's website said Thursday that a National Drug Council would organize meetings to "facilitate reflection" on this point.
The text sent to Congress added that "marijuana has been for many years the most-consumed illegal substance" in Uruguay, and "has an important level of legitimacy in Uruguayan society." It also cited precedents for various levels of decriminalization of marijuana possession in the Netherlands, Australia, Spain and several U.S. states.
MONTEVIDEO, Uruguay —
A plan by Uruguay's leaders to turn the government into the nation's marijuana dealer has been presented to Congress, where the idea faces an uncertain fate.
President Jose Mujica's entire Cabinet signed onto the proposed law, which aims to take over an illegal marijuana trafficking business estimated to be worth $30 million to $40 million a year.
The law would have government control marijuana imports, production, sale and distribution, creating a legal market for people to get pot without turning to riskier illegal drugs. The text submitted to Congress on Wednesday declares that the drug war is a failure and that marijuana is only mildly addictive, unlike "cocaine, alcohol, tobacco and psychotropic drugs."
But lawmakers are divided on the idea, even within Mujica's Broad Front coalition of leftist parties and social groups.
Mujica has said he'll push the plan only if it gets at least 60 percent support in polls. An official in the president's press office, speaking on condition of anonymity according to department policy, said the bill isn't expected to advance quickly.
The text says the project's goals include "the normalization and full social acceptance of marijuana use" so that consumers aren't "stigmatized, nor treated as criminals." Instead, it proposes education about the risks of marijuana use. The presidency's website said Thursday that a National Drug Council would organize meetings to "facilitate reflection" on this point.
The text sent to Congress added that "marijuana has been for many years the most-consumed illegal substance" in Uruguay, and "has an important level of legitimacy in Uruguayan society." It also cited precedents for various levels of decriminalization of marijuana possession in the Netherlands, Australia, Spain and several U.S. states.
Bank to make a killing by cutting crime
AP | August 04, 2012
GOLDMAN Sachs will invest almost $US10 million ($9.5m) in a New York City jail program that will allow the investment firm to profit if it can reduce recidivism rates.
The move makes New York the first US city to test "social impact bonds" that enlist private entities to help save governments money over the long term.
Inmates aged 16 to 18 will receive education, training and counselling intended to reduce the likelihood of reoffending after their release.
"New York City is continually seeking innovative new ways to tackle the most entrenched problems, and helping young people who land in jail stay out of trouble when they return home is one of the most difficult - and important - challenges we face," Mayor Michael Bloomberg said.
"As the first city in the nation to launch a social impact bond, we are taking our efforts to new levels and we are eager to see the outcome of this initiative."
City officials said Goldman would provide a $US9.6m loan to pay for the program at the Rikers Island jail complex.
If recidivism drops by 10 per cent, the firm will get back the $US9.6m. If it drops even more, Goldman could make as much as $US2.1m in profit. If recidivism doesn't drop by at least 10 per cent, Goldman will lose as much as $US2.4m.
Nearly half of the adolescents who leave city jails return within one year. Social impact bonds were first used in Britain and are being explored in Australia and elsewhere in the US.
GOLDMAN Sachs will invest almost $US10 million ($9.5m) in a New York City jail program that will allow the investment firm to profit if it can reduce recidivism rates.
The move makes New York the first US city to test "social impact bonds" that enlist private entities to help save governments money over the long term.
Inmates aged 16 to 18 will receive education, training and counselling intended to reduce the likelihood of reoffending after their release.
"New York City is continually seeking innovative new ways to tackle the most entrenched problems, and helping young people who land in jail stay out of trouble when they return home is one of the most difficult - and important - challenges we face," Mayor Michael Bloomberg said.
"As the first city in the nation to launch a social impact bond, we are taking our efforts to new levels and we are eager to see the outcome of this initiative."
City officials said Goldman would provide a $US9.6m loan to pay for the program at the Rikers Island jail complex.
If recidivism drops by 10 per cent, the firm will get back the $US9.6m. If it drops even more, Goldman could make as much as $US2.1m in profit. If recidivism doesn't drop by at least 10 per cent, Goldman will lose as much as $US2.4m.
Nearly half of the adolescents who leave city jails return within one year. Social impact bonds were first used in Britain and are being explored in Australia and elsewhere in the US.
NSW Bikie Laws Will Catch Innocents
Kirk McKenzie | New Matilda | 15 August 2012
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
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