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Issue #1589      April 17, 2013

NSW gov’t plans further attacks on civil liberties

The NSW O’Farrell government is considering removing the right to silence for people accused of crimes, so that failure to answer questions could be used in a court of law as evidence of guilt. Defence counsel would have to disclose their arguments well in advance of the court hearing, whereas the prosecution would not.

The right to silence is one of the longest held legal conventions in Australia and Britain, and enables accused persons to protect themselves from self-incrimination under heavy-handed police interrogation. Abolishing this right would put at risk the presumption of innocence, especially in NSW, which has no Bill of Rights to guarantee a fair trial and proper legal assistance. It would constitute one of the most serious breaches of civil rights in Australian history.

Moreover, the government wants to introduce “future crime” legislation under which any prisoner deemed not to be rehabilitated at the end of their sentence could be indefinitely imprisoned, even until they died. This would also be a gross violation of civil rights.

The government is also considering extending the notoriously ineffective and intrusive sniffer dog drug searches at railway stations, and incarcerating intoxicated persons in “sobering up centres”– in effect imprisoning them without trial.

A crescendo of attacks

In 2011 the state opposition led by Barry O’Farrell promised to end the main political parties’ competition for tougher compulsory jail sentences (the “law and order auction”), reduce the complexity of bail laws, lower the rate of incarceration of vulnerable groups, including children and people with mental disabilities, and reduce the rate of recidivism.

However, in government the O’Farrell regime ignored most of its pledges, and dumped most of the recommendations of an expert report on bail reform, except for those dealing with the detention of children. Moreover, it passed new laws which effectively removed long-established civil liberties, despite vigorous objections from legal organisations, civil rights groups and Greens MPs,

Rolling back your rights

It’s worth reviewing civil rights that have been attacked by the government so far.

The right to remain in a public place has been eroded by one of the government’s “move on directions” legislation,. As Greens MP David Shoebridge pointed out: “These laws ... enable police to decide, based on their evidence alone, that a person is intoxicated, and then force them from a public place. While there is an argument to allow police to break up rowdy intoxicated groups, there is no justification to allow police to target individuals. This legislation will allow police to harass and intimidate people at their discrimination.”

The legislation has implications for young people, the homeless, Aboriginal people and Torres Strait Islanders, but also for demonstrators opposing government initiatives.

The discriminatory impact of this legislation has been compounded by the reintroduction of “drunk and disorderly” laws dropped in the 1970s. The Royal Commission into Aboriginal Deaths in Custody recommended that “governments should legislate to abolish the offence of public drunkenness”. Being drunk in a public place might be a public inconvenience or embarrassment, but it’s not a crime.

The right to appropriate apprehension and sentencing has been effectively removed. A judge hearing a case of someone accused of murdering a police officer must now make a mandatory sentence of life imprisonment. The law makes no distinction between, say, a ruthless carefully-planned assassination and the impetuous act of a teenager, and will certainly result in unjust sentences. The law has been vigorously opposed by the Law Society and the Bar Association.

Anyone apprehended while breaching recently-introduced anti- graffiti laws, even just for carrying a spray can, must be brought before a court, The police have no power to caution or impose an on-the-spot fine, and the result is sure to increase the number of juvenile convictions.

The right of legitimately-based organisations to non-criminal status has been to all intents effectively ended by the “anti-bikie” laws, under which an organisation can be “declared”, in effect rendered illegal if a significant minority of its members associate for the purpose of criminal activity. Members of a declared organisation can be subjected to control orders, and sentenced to jail if they breach them.

It doesn’t matter if most members of the organisation aren’t involved in the criminal activity or are unaware of it. The Law Society and Bar Association vigorously oppose this law which they say violates civil rights. Its existence threatens the activity or even existence of protest organisations and political groups such as the Communist Party of Australia, which faced banning as an illegal organisation in the early 1950s.

The right to meet other members of the public has now virtually disappeared, because of the “Consorting and Organised Crime” legislation, which permits the arrest of anyone who meets on more than one occasion with a person convicted of an indictable offence. Ostensibly aimed at preventing people from assisting criminal activity, in effect it criminalises anyone associating with that person – even members of his or her own family. The law is supposedly aimed at anyone dealing with organisations accused of criminal activity (such as bikie groups), but it may be applied even in cases where the person involved has no idea that those with whom he or she is dealing are involved in criminal activity.

The first person convicted under this law was a young man in a country town simply going to the shops with a friend who was a member of a declared organisation. Universal application of the law would place huge sections of the population at risk of prosecution, and its imposition at the discretion of the police is wide open to corruption.

The cherished, long-established right of spousal privilege was removed under legislation introduced in 2012, under which it became an offence for someone to refuse to give evidence that might lead to a conviction of their wife, husband or common law partner. This law applies even in cases where someone has been threatened with violence by their spouse or partner if they disclose such information.

The right of official visitor access removes the right of anyone being held under the state’s notorious anti-terror laws to visits by independent people authorised to inspect prisons. As David Shoeebridge observed: “This basically means that people who can be held indefinitely in NSW prisons under these anti-terror laws without charge will have no recourse to an independent external person to whom they would be able to make any complaints about the conditions of their incarceration.”

According to David Shoebridge the law and order auction has become a civil rights give-away. That must end at the next elections, if not before.   

Next article – Original place names embraced in Tassie

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