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- 8 June 2000
Crimes Legislation Amendment Bill
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Page: 6918
Second Reading
Debate resumed from 1 June.
Mr HUMPHERSON (Davidson) [12.44 p.m.]: The Coalition does not oppose the Crimes Legislation Amendment Bill and is pleased to support a number of elements contained within it. The purpose of the bill is to make various amendments to legislation relating to the administration of criminal law in New South Wales. The bill will introduce offences of sabotage and threatened sabotage. The intent is to have in place for the Sydney Olympic Games provisions for those offences should major utilities such as energy be the subject of a threat of sabotage. Sabotage or the threat of sabotage could jeopardise not only the operation of the Olympic Games and the image of New South Wales and Australia, but also seriously disadvantage and impact on many citizens in this State. Existing penalties that would apply to offences in those circumstances are modest.
We concur that the penalties need to be toughened up, but we are cautious not to use a sledgehammer to crack the nut. We want to be assured there is no excessive use of this particular offence, therefore we will monitor and observe how it is applied in the future. The Crimes Act is to be amended to ensure that an offence is able to be prosecuted inside New South Wales if acts directed against persons or property in New South Wales are committed outside the State. Naturally enough, that is an appropriate change that we support. We support the amendment to the Search Warrants Act 1985 to include a clear and express power to issue search warrants for interstate indictable offences.
We concur with the amendment of the Children (Criminal Proceedings) Act 1987 to allow for suspended sentence and Griffiths-type bonds and to facilitate the operation of the Youth Drug Court. We concur with the amendment to section 10 of the Victims Rights Act 1996 to enable the Victims of Crime Bureau to establish a missing persons section. Amendments will be made to the Listening Devices Act 1984 to include the use of devices capable of sound and visual recording transmitting position. Since 1984 technology has improved and, obviously, visual recording and transmitting is an attractive means the Police Service is keen to apply. At this point we see no major disadvantages in that change; indeed, there are obvious advantages to using those facilities in the prosecution of law in New South Wales.
The final major change the bill seeks to make is to repeal section 353 of the Crimes Act 1900, which obliged individuals to arrest anyone offering to sell or give them stolen property. I acknowledge that this particular section is regarded as redundant and has not been applied, but notwithstanding that a section of law is not applied, it can operate to act as a disincentive to someone who may not observe what would ordinarily be regarded as a community responsibility. Members of the community ought to be aware of their obligations. Legislative powers act as an incentive to ensure people observe and comply with that obligation, especially in instances where stolen properties are offered for sale or provided to others. I would not concur with any change which takes away the onus of community responsibility on all members of our society. There are some other miscellaneous amendments to the Crimes (Sentencing Procedure) Act 1999 which the Opposition does not have concerns about. In conclusion, the Opposition does not oppose the bill.
Ms HARRISON (Parramatta) [12.50 p.m.]: I am pleased to contribute to this debate on the important initiatives the Government is bringing forward to improve the criminal law in New South Wales. Other members will speak on aspects of the bill that interest them and their constituents, as the entire package should. I have had the benefit of reading the bill closely and I am aware of the rationale for the changes. I will speak to just a few changes to the criminal law that impact on search and surveillance powers of police. The bill provides for a clear and express power to issue search warrants for interstate indictable offences. I understand that approximately 90 warrants for indictable offences committed interstate were issued and executed in New South Wales last year. Each of these warrants is likely to be associated with a case of some importance. Upon introduction in 1985, the Search Warrants Act was described as modernising the law of search warrants. Section 5 (2) as it now stands reads:
… any act or omission which if done or omitted to be done in New South Wales would constitute an offence punishable on indictment.
These words really make sense only if the Act has extrajurisdictional effect. In 1986 amendments were inserted to allow for ministerial arrangements regarding items seized in connection with extraterritorial offences. The amendments clearly assumed that the Act already was operating with regard to interstate offences. The amendments were designed to administer the handling of such items. The courts have not raised questions about the legislation regarding this issue. However, the Government, as a pre-emptive strike, is moving to ensure the validity of the law as it has been made aware that the current provisions in section 5 may not go far enough to properly facilitate an extrajurisdictional warrant. Search warrant legislation is to be strictly interpreted because of the intrusive nature of the activity it facilitates. Therefore, it is in the interest of certainty for the police or other crime or investigative bodies that the legislation makes it abundantly clear that the extraterritorial nature of the Act is beyond doubt effective.
I understand that the Attorney General's Department is reviewing the Search Warrants Act in a thorough manner. This amendment has arisen as part of that process in the early stages and requires attention now. I am pleased that unambiguous language is to be adopted to make the ability to obtain warrants for interstate matters absolutely clear. The bill also makes changes to the Listening Devices Act which are well worth noting. The Listening Devices Act regulates the lawful use of listening devices and provides offences for their misuse. It also deals with the admissibility of evidence gathered using such devices and regulates the availability of warrants authorising the use of listening devices. A "listening device" is defined under the Act as an instrument or apparatus capable of being used to record or listen to a private conversation at the same time as it occurs. In a recent judgment in the District Court Justice Viney ruled that this definition did not include video cameras, despite the fact that they are capable of recording sound. In the 1999 case of Kay he said:
I am not prepared to concede that the use of a video camera under the guise of a listening device comes within the definition ... it will require a definitive legislative pronouncement ... to be accepted.
The Government has taken note of this and makes that pronouncement here today. The New South Wales Law Reform Commission has a reference on the issue of the right to silence, and I am sure it will consider the use of surveillance legislation more fully in its forthcoming report. In its issues paper on the same topic the commission was of the view that the limitation as expressed, which eliminates video with a listening capacity, is too restrictive. The commission sought comments about widening the definition then, however, as an important interim measure an amendment to the Listening Devices Act 1984 is required to ensure that we do not exclude vital evidence gathered in an otherwise orderly manner.
The bill details a number of other significant changes. I commend the Government's important initiative to give the Victims of Crime Bureau the capacity to assist families of missing persons. It will assist families to liaise with police, the coroner and like bodies where required. The Government is also moving to ensure that the appropriate measures are in place for sentencing options for children in anticipation of the Youth Drug Court. As the member for Parramatta I have a specific interest in the Drug Court that has been operating very successfully in my area over the past year and I am pleased that the Government is extending the concept to a Youth Drug Court model which will also operate in its initial stages in western Sydney, from 1 July. I am pleased to support the Government on these informed and timely changes to the criminal justice system in New South Wales and I commend the bill to the House.
Mr COLLIER (Miranda) [12.55 p.m.]: I am pleased to speak on the Crimes Legislation Amendment Bill. With this bill the Government brings forward a number of significant changes to the criminal law that will enhance the criminal justice system in this State. In particular I note the introduction of a new offence of sabotage and a second offence of threatened sabotage. "Sabotage" is defined in the bill as damage to public facilities with the intent to cause that damage and to cause extensive destruction of property or major economic loss. I note that "public facilities" is defined widely and includes government facilities, public infrastructure facilities, public transport facilities and public places.
It is anticipated that Australia will soon sign the United Nations Convention on the Suppression of Terrorist Bombing. The UN convention has not yet taken effect as it requires some 22 parties to come into force. So far there are only six. While it remains in the purview of the Commonwealth to negotiate and enter into international treaties, it is certainly within the prerogative of State governments to adopt sensible and timely changes to laws that deter criminal activities that have an impact at the local level. The provisions of this bill draw directly from the UN conventions, formulations and definitions. They also accord with the provisions prepared by the model criminal code officers committee for the Standing Committee of Attorneys-General. The new offence of sabotage will apply to the most gross or serious behaviour akin to terrorism.
The existing provisions of sections 194 to 200 of the Crimes Act deal with a range of offences against property. The Crimes Act also contains provisions regarding the contamination of goods. The Summary Offences Act contains provisions regarding violent disorder and provides the police with power to move individuals on if those persons are, in the view of the police, obstructing or causing fear to others. Police in the Sutherland and Miranda local area commands have confirmed to me that these provisions are effective. To ensure consistency of approach to penalty, the Government brings forward the new offence of sabotage to penalise the activity of persons whose conduct causes damage to public facilities or is intended to cause that damage and who by that conduct have caused extensive destruction to the public facility, or any part of it, and major economic loss. A maximum penalty of up to 25 years imprisonment is available. It is the element of deliberate terrorism that justifies the penalty being so severe.
As honourable members would be aware, questions of territoriality arise as a result of threats made from outside the State. This bill permits prosecution for an offence where there is a geographical nexus. The amendment to the Crimes Act in schedule 1, part 1A, deals with geographical jurisdiction. The part applies to all offences and applies to offences where a geographical nexus exists between the State and the offence. For example, if an act of sabotage or threatened sabotage is initiated outside New South Wales but the effect of that threat is felt inside the State then it is caught by New South Wales law. This law was previously drafted in section 3A of the Crimes Act in an effort to permit this. Several Supreme Court decisions have rendered this provision somewhat doubtful. This bill will put that doubt to one side.
Other provisions in the bill make significant changes to the criminal law. One of these is an amendment to section 353 of the Crimes Act, which provides that any person who is offered or sold or given property which he or she reasonably suspects to be stolen may arrest the person offering the property and bring the person before a court. This section also places an obligation on the person to arrest the offender if it was in the person's power to do so. The repeal of this archaic section does not affect the general powers of arrest of police officers and private individuals conferred under the Act.
Another important change to the law is the provision of the time limit on the application of bonds under new section 10 of the Crimes (Sentencing Procedure) Act, formerly the provision under section 556A of the Crimes Act. Previously magistrates were permitted to give a person a bond without a time limit being specified. Under this bill the maximum is two years, which promotes certainty in the imposition of penalties for the community and for the person who is before the court. People who are given bonds under that provision may also be given a Griffiths bond, which is an effective tool used widely by the courts to allow rehabilitation, particularly for offences involving drugs. Another major reform is an amendment to the Listening Devices Act 1984 which will ensure that the Act applies to a device that makes a sound recording of a private conversation even though the device also records or transmits visual images.
That amendment brings the Listening Devices Act up to date. It allows police to use a video camera and for that evidence to be admissible in court. It also allows police to use devices that not only record sound but also track the location of an alleged offender. Finally, the amendments contained in the bill ensure that the Victims of Crime Bureau, which is part of the Attorney General's Department, may also exercise its functions to support the immediate families of missing persons. There can be no greater tragedy than to have a loved one missing and for the family to have no explanation for it. Many families of persons who have disappeared without a trace need extensive counselling. The amendment allows the Victims of Crime Bureau to assist and support the immediate family, and the amendment is welcomed. The bill contains provisions that will enhance the administration of criminal justice in the State of New South Wales and I support it.
Mr KERR (Cronulla) [1.02 p.m.]: The Opposition does not oppose the bill, which introduces a new offence of sabotage. Up to the present that has not attracted a great deal of public comment. Whenever a regime becomes totalitarian the first defence is to introduce an offence of sabotage and to make it subjective. One needs to consider how this bill will operate in practice. The honourable member for Miranda outlined other provisions in the bill and I do not intend to duplicate his efforts. In relation to section 556A of the Crimes Act, the bill restricts magistrates to a term of two years when imposing a bond. That provides certainty at the expense of flexibility. As the previous speaker would be aware, certain cases may justify extensions beyond the two-year period but that option is no longer available. This is an important bill but it has not received the public discussion that a bill of its significance warrants. It will be interesting to know how the bill operates in practice when it becomes an Act and is enforced.
Mr WHELAN (Strathfield—Minister for Police) [1.03 p.m.], in reply: I thank honourable members for their contributions to this important debate.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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