COURTS AND CRIMES LEGISLATION AMENDMENT BILL 2009
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Industrial Relations, Vice President of the Executive Council) [5.10 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard
The purpose of the Courts and Crimes Legislation Amendment Bill 2009 is to make miscellaneous amendments to courts and crimes related legislation. The bill is part of the Government's regular legislative review and monitoring program. The bill will amend a number of Acts to improve the efficiency and operation of courts and tribunals. The bill will also make minor amendments to a number of Acts relating to statutory bodies within the Attorney General's portfolio. I will now outline each of the amendments in turn. Schedule 1 contains amendments of Acts relating to eligible judges. Under a number of Acts, there are provisions to designate certain judges of the Supreme Court as eligible judges for the purposes of exercising a power as persona designata—that is, in their personal capacity rather than as a judge of the court.
The types of tasks judges undertake in this capacity include the issuing of certain warrants and the declaration of criminal organisations. The eligible judge provisions were originally introduced into the then Listening Devices Act in 1996 on the advice of the then Solicitor General. The amendments were considered appropriate in light of the High Court's decision in Kable v Director of Public Prosecutions, which cast doubt upon the ability of the New South Wales Parliament to confer certain functions on the Supreme Court. The existing provisions provide for the appointment of eligible judges in similar terms, with each Act requiring the consent of the relevant judge and a declaration by the Attorney General. The judge may revoke their consent and the Attorney may revoke any declaration.
From the introduction of the eligible judge provisions in the Listening Devices Act in 1996—now the Surveillance Devices Act 2007—through to the creation of similar provisions in the Law Enforcement and National Security (Assumed Identities) Act 1998, Law Enforcement (Powers and Responsibilities) Act 2002, and Terrorism (Police Powers) Act 2002, there were no objections to the role of the Attorney General in the appointment of judges to carry out these functions. Following the introduction of the provisions in the Crimes (Criminal Organisations Control) Act 2009, there has been some speculation that the existing provisions could give rise to at least the appearance of an infringement upon judicial independence due to the ability of the Attorney General to revoke declarations of his own accord. The Attorney General has never exercised his discretion either to reject a nomination or to independently revoke one, and it was never intended, and has never been used, to provide the Attorney General with such a deliberative role in determining which judges should exercise these functions.
As such, it is appropriate to amend the provisions in the various Acts to reflect the practice that the Attorney General has no role in vetting these appointments. The bill accordingly revokes the power of the Attorney General to revoke the declaration of an eligible judge and provides instead for the automatic revocation of the declaration if the Supreme Court judge revokes his or her consent, resigns or the Chief Justice of the Supreme Court advises the Attorney General that the declaration should not continue. The bill also puts beyond doubt that the selection of eligible judges to exercise any particular function under the Act is not one by the Attorney General or other Minister nor is the exercise of the functions of an eligible judge one subject to the control or direction of the Attorney General or relevant Minister. The references to eligible judge in the case of the Surveillance Devices Act extend to eligible magistrates. I now turn to the amendments contained in schedule 2 to the bill.
Schedule 2.1 contains amendments to section 22A of the Bail Act 1978, which sets out the test to be applied by a court in determining whether to refuse to hear a further application for bail by an accused person. In 2007, section 22A was amended to limit the circumstances in which a person could make multiple applications for bail. At the time of introducing the amendment, it was said:
The changes are necessary to guard against unnecessary, repeated bail applications that serve only to inflict further anguish upon victims.
The changes will also prevent what is known as 'magistrate shopping'—the process of going from magistrate to magistrate, or judge to judge, with hope of obtaining a different outcome.
These policy goals remain valid. However, it has become apparent that there has been significant misapplication of the section, which has coincided with an increase in the number of people being remanded in custody. The revised test contained in the Courts and Crimes Legislation Amendment Bill 2009 substantially replicates current section 22A, but with an important difference: any ambiguity that might have developed around the requirement that facts and circumstances be "new" in the current section 22A has been removed. Any relevant facts and circumstances that have previously not been brought to the attention of the court are grounds for a further application for bail. The court need not consider whether those facts or circumstances justify the grant of bail before deciding whether to hear the application for bail.
Some examples of relevant facts and circumstances that could justify a further bail application could include: the presentation of a report prepared by Juvenile Justice; the presentation of any report or document prepared by a government or non-government agency or expert containing data relevant to the circumstances of the applicant or facts not previously brought to the attention of the court; the availability of persons to act as sureties or to supervise the applicant in some way; the availability of a place of residence; the availability of a rehabilitation centre or program; the availability of a sum of money, or an increased sum of money for surety purposes; a delay in the progress of the proceedings; a change in the health or mental state of the applicant; a change in circumstances of a dependant or family member of the applicant; the withdrawal of charges or the finalisation of other matters before the court; or a significant change in the strength or the nature of the case against the applicant.
What an accused cannot do is re-apply for bail simply because he or she happens to be in court that day, or because a "sympathetic" judge is sitting, or, in the most despicable of circumstance, because he or she wants to harass the victim. The Law Society of New South Wales has indicated its support for this amendment, describing it as "a step in the right direction". However, the society has suggested that more needs to be done; specifically that young people charged with criminal offences should be exempt from the requirements of section 22A.
This approach was considered by the Government in detail and ultimately rejected for a number of reasons, including the following. First, excluding young people undermines the policy of protecting victims from the stresses of repeat, unnecessary bail applications. Nobody would suggest that a young person should, merely because of his or her age, be allowed to make applications that are a waste of time and place stress on victims. Second, excluding young people undermines the policy of preventing judge "shopping". Again, an alleged criminal's age does not justify him or her manipulating the administration of justice. Third, the usual reason advanced for the need to exclude young people from section 22A is that children, by virtue of the limitations of their age and circumstances, are unable to put adequate instructions to their lawyers on the first occasion they appear, resulting in bail applications that fail because of a lack of information being provided, which in turn prevents second applications from being made.
These amendments make abundantly clear that in this situation a second application can be made when the young person is able to provide more complete instructions, and so this reason for excluding young persons falls away. The revised section therefore preserves the important policy goals of protecting victims and stopping judge "shopping", while ensuring that those who should be granted bail are not denied bail because of procedural hurdles.
Schedule 2.5 to the bill amends the Children's Court Act 1987 to enable a Local Court magistrate to exercise the jurisdiction of the Children's Court without being appointed as a children' magistrate. A local court magistrate will be able to exercise the jurisdiction of the Children's Court when authorised to do so by the President of the Children's Court and the Chief Magistrate. The amendment is necessary because an old 1992 proclamation dealing with Local Court magistrates exercising Children's Court jurisdiction is now out of date. The amendment to the Children's Court Act is strongly supported by both the President of the Children's Court and the Chief Magistrate. As a result of the amendments to the Children's Court Act, the bill also makes consequential amendments to the Children and Young Persons (Care and Protection) Act 1998, the Children (Detention Centres) Act 1987, and the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009.
Schedules 2.6 and 2.11 to the bill amend the Civil Procedure Act 2005 and the Industrial Relations Act 1996 respectively, to enable the Civil Procedure Act and Uniform Civil Procedure Rules to be applied in civil proceedings in the Industrial Relations Commission. The application of the Civil Procedure Act and Uniform Civil Procedure Rules is consistent with Government efforts to increase the efficiency of the court system and to promote consistency in procedures across jurisdictions where appropriate. The amendments have the strong support of the President of the Industrial Relations Commission. The President will be a member of the Uniform Rules Committee, or he may nominate a judicial member of the commission to represent him on the committee.
Schedule 2.7 to the bill amends the Confiscation of Proceeds of Crime Act 1989 to make it clear that the power to issue search warrants under division 1 of part 3 of the Act, which relates to search powers, is exercisable by an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.
Schedule 2.8 amends the Crimes (Criminal Organisations Control) Act 2009. Earlier this year, the Government passed the Crimes (Criminal Organisations Control) Act in order to disrupt and dismantle criminal gangs that actively threaten public order in this State. Since the commencement of the Act, New South Wales police have been working tirelessly through initiatives such as Operation Raptor to investigate and prosecute those involved in organised criminal groups engaged in illegal activity. In doing so, and in reviewing their powers under the Act, a number of issues have arisen regarding provisions of the Act that could be tightened in order to assist police law enforcement activity in this area.
The bill therefore contains some minor amendments that will assist police in the enforcement of these laws. The bill clarifies that control orders can be issued against persons who, although they may say they are no longer members, continue to be involved with these criminal groups. One purpose of the Act was to break up these gangs and disrupt their ability to conduct organised crime. From this perspective, genuine resignations from such gangs is a desired outcome of the legislation, and this amendment does not seek to jeopardise that outcome.
Police were concerned, however, to ensure that criminals who "pretend" to resign from a gang, and thus try to avoid coming within the scope of the Act, but nevertheless continue to associate with the gang and engage in organised criminal activity, will still be caught by the laws. Police expressed concern that where a person who is a member of a declared organisation asserts that they are no longer a member, it may not be possible to seek a control order against the person under section 19 of the Act. The current definition of "member" under the Act includes "a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belonged to the organisation". This definition is likely to cover people who falsely assert that they are no longer members of an organisation, although it necessitates proving that they are still treated as a member of the organisation by other members of the group even though they have officially resigned. The amendment will mean that involvement with group members by a former member will be enough, and ensures that just "handing in your colours" will not prevent police enforcing the Act.
New South Wales police have also raised concerns that persons targeted under the Act are likely to be uncooperative, or actively avoid being served with notices under the Act to avoid being caught by its provisions. As a result, the bill contains new powers for police to request identification particulars from a person who needs to be served with an interim control order and furthermore to detain such a person for a reasonable period, and no longer than two hours, in order to effect service where that person refuses to remain in one place long enough for service to be effected. There will be an offence of refusing to provide identification or providing a false identification in such circumstances. The bill also contains a similar power allowing police to request identification particulars from anyone suspected of committing an association offence under the Act.
The bill clarifies the ability of police to apply for alternative methods of service of an interim control order, provided all reasonable steps have been taken to personally serve the order. Interim control orders do not take effect until they have been served upon the controlled member, and must be served within 28 days. This amendment will clarify that police need not wait until the end of the 28 days before applying for substituted service. Finally, the bill creates an additional offence applicable to persons who are the subject of a control order of associating on three or more occasions within a three-month period with other controlled members, carrying a maximum penalty of three years imprisonment.
The Crimes (Criminal Organisations Control) Act already contains an offence of association applicable to controlled members, which carries a penalty of up to two years imprisonment for a first offence, and an offence for subsequent associations carrying a maximum penalty of five years imprisonment. However, the latter is applicable only where the person already has a conviction for the first-time association offence. This amendment will better equip police to bring charges against individuals who do not have a prior conviction for an association offence but flout the laws by continuing their association with other controlled members. These amendments will ensure that police have the powers they need to dismantle criminal gangs in New South Wales.
Schedule 2.9 to the bill amends the Criminal Procedure Act 1986 to enable the Industrial Registrar to make orders commencing summary proceedings with respect to offences that may be dealt with by the President or a judicial member of the Industrial Relations Commission. The Industrial Relations Commission will take over the criminal jurisdiction of the Industrial Magistrates Court upon the commencement of the Industrial Relations Amendment (Jurisdiction of the Industrial Relations Commission) Act 2009. The amendment contained in the present bill will ensure that when the Industrial Relations Commission assumes responsibility for this additional jurisdiction, the criminal proceedings before the commission will be as simple and efficient as possible.
Schedule 2.10 to the bill amends the Evidence (Audio and Audio Visual Links) Act 1998 to enable all employees of the New South Wales Police Force, not just sworn officers, to give corroborative evidence by audio and audiovisual link. The amendment is consistent with Government efforts to increase the efficiency of the criminal justice system through the use of technology where appropriate.
Schedule 2.12 to the bill amends the Law Enforcement (Powers and Responsibilities) Act 2002 to: firstly, remove a superfluous definition of authorised officer in section 46(1) of the Act; and, secondly, to make it clear that the eligible applicant for a covert search warrant need not intend to personally execute the warrant.
Schedule 2.13 to the bill amends the Legal Profession Act 2004 to put beyond doubt the power of the District Court to hear appeals against decisions of cost assessors arising under the Legal Profession Act 1987. The District Court has already been given jurisdiction to hear appeals against decisions of cost assessors arising under the Legal Profession Act 2004. The amendment will ensure that all such appeals are heard by the same court.
Schedule 2.14 to the bill makes two amendments to section 25 of the Local Court Act 2007, which sets out the composition of the Local Court Rules Committee. First, section 25 will be amended to enable the Chief Magistrate to appoint any officer of the Local Court to the Local Court Rule Committee. Currently, the Chief Magistrate may appoint only a Local Court Registrar to the rule committee. There may be other officers of the Local Court who could bring relevant experience and expertise to the Committee. Second, section 25 will be amended to provide that the Minister need appoint a person as a member to the Local Court Rule Committee only if the Minister thinks it appropriate to do so. This will align the position of the Local Court Rule Committee with that of the District Court Rule Committee.
The Hon. DAVID CLARKE [5.10 p.m.]: The Opposition does not oppose the Courts and Crimes Legislation Amendment Bill 2009. The purpose of the bill is to amend a diverse number of Acts pertaining to courts- and crimes-related legislation, which the Government states is part of its regular legislative review and monitoring program, for the purpose of improving the efficiency and operation of our State's courts and tribunals. However, contained in this bill in what the Government says are miscellaneous amendments are important amendments to the Crimes (Criminal Organisations Control) Act 2009 and the Bail Act 1978.
The Crimes (Criminal Organisations Control) Act 2009 is the Government's response to the ongoing activities of criminal gangs, including bikie gangs. The purpose of the bill is to disrupt and dismantle such gangs. Mr Barry Collier, the Parliamentary Secretary to the Attorney General, in his agreement in principle speech in the other place, stated:
there has been some speculation that the existing provisions could give rise to at least the appearance of an infringement upon judicial independence due to the ability of the Attorney General to revoke declarations of his own accord.
The Government seeks to amend the Act to remove the power of the Attorney General to revoke the appointment of Supreme Court judges as eligible judges for the purpose of issuing search and other warrants, and exercising other similar administrative functions. The purpose is therefore to make clear that the selection of an eligible judge to exercise a function is not made by the Attorney General or other Minister and that the exercise of the function is not subject to the control and direction of the Attorney General or other Minister.
Currently the Act provides for the Attorney General to declare a Supreme Court judge to be an eligible judge, if that judge has consented to being nominated as an eligible judge, and enables the Attorney General to receive such a declaration. This is described as the conferral of functions of an administrative nature, such as the issue of search and other warrants on judges as designated persons. These provisions are based on the perceived ramifications of the High Court decision in Kable v Director of Public Prosecutions
, which cast doubt on the ability of this Parliament to confer certain functions on the Supreme Court.
The amendment seeks to remove the power of the Attorney General to revoke the declaration of an eligible judge, and provides instead for the automatic revocation of such a declaration if a Supreme Court judge revokes his or her consent, or ceases to be a judge, or if the Chief Justice notifies the Attorney General that the declaration should not continue. The amendment also seeks to make it clear that the selection of the eligible judge to exercise a function is not made by the Attorney General or other Minister, and that the exercise of the function is not subject to the control and direction of the Attorney General or other Minister.
The legislation seeks to remove the perception that the Attorney General may remove judges who do not toe the line on the issue of control orders. In a similar way the Law Enforcement and National Security (Assumed Identities) Act 1998, the Law Enforcement (Powers and Responsibilities) Act 2002, the Surveillance Devices Act 2007 and the Terrorism (Police Powers) Act 2002 are also amended to the same affect to avoid infringing the decision in Kable v Director of Public Prosecutions.
The Act is further amended to enable a police officer to request a person suspected of being a person on whom notice of an interim control order is required to be served, or suspected of being subject to a control order and of associating with another person who is the subject of a control order, to disclose his or her identity, and to make it an offence for the person to fail or refuse without reasonable excuse to disclose his or her identity or to give false or misleading information about it. The bill will amend the Act so as to enable a police officer to detain a person suspected of being a person on whom notice of an interim control order is required to be served in order to serve the notice.
It will make it clear that substituted service of an interim control order may be ordered at any time during the period in which notice of the making of the order must be served under section 16 (1) of the Act. The amended Act will enable control orders to be made against certain former members of declared organisations, and will make it an offence for a controlled member of a declared organisation to associate with another controlled member on three or more occasions within a three-month period.
The bill amends the Bail Act 1973 so as to revise the test to be applied by a court in determining whether to refuse to hear a further application for bail by an accused person. The background to this matter is that in 2007 the Bail Act was amended to restrict the number of bail applications that could be made. The rationale behind this amendment was to "guard against unnecessary, repeated bail applications that serve only to inflict further anguish upon victims". The changes were also meant to stop magistrate shopping. The reality, however, has been that we have seen a significant increase in accused on remand in New South Wales jails, particularly in regard to children and juveniles.
Currently section 22A of the Bail Act 1978 requires a court to refuse to entertain a further application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by the court unless, first, the person was not legally represented when the previous application was dealt with, and the person now has legal representation, or, second, the court is satisfied that new facts or circumstances have arisen since the previous application that justifies the making of another application. Further applications to a court cannot be made by a lawyer for an accused person, except where the application would be permitted under the two previous exceptions.
The bill amends section 22A of the Bail Act to require a court to refuse to entertain an application for bail by a person accused of an offence if an application has already been made and dealt with by the court, unless there are grounds for a further application for bail. The grounds for a further application are: first, the person was not legally represented when the previous application was dealt with and the person now has legal representation; second, information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application; third, circumstances relevant to the grant of bail have changed since the previous application was made. The Bail Act is further amended so as to provide that a lawyer for an accused person may refuse to make a further application for bail if there are no grounds for a further application.
A report issued earlier this year entitled "Recent trends in legal proceedings to a breach of bail, juvenile remand and crime" indicated that the amendments to toughen the Bail Act enacted in December 2007, together with increased police activity, contributed to a 32 per cent rise in the number of juveniles on remand between 2007 and 2008. Only 34 per cent of young people jailed for breaching bail committed a further offence, but 66 per cent had been locked up for breaching other bail conditions, such as not complying with curfew. Under the amended Bail Act adults and children have usually found that they can make only one bail application. The report found juveniles averaged 35 days on remand after the Act was amended, compared to about 10 days previously. Despite the fact that there have been calls for the Government to repeal the 2007 amendments as they apply to children, the present bill fails to heed these calls.
The amendments only add what is essentially a change of circumstance ground—that is, that information relevant to the grant of bail to be presented in the application was not presented to the court in the previous application. Under this ground the relevant information may have been available or even provided in instructions to the solicitor or barrister making the first application, so long as that information was not presented to the court. This seems to be an anomaly and could arguably lead to subsequent applications based on matters that could not be corroborated by the court, such as where a subsequent solicitor or barrister might advise the court that this information was not previously submitted, or there could be a situation where applications are made before different magistrates without the court having the ability to confirm that the information raised was new.
The bill fails to resolve the bail dilemma on two grounds. Firstly, it fails to resolve the problem of juvenile offenders being incarcerated on remand for excessively long periods. Secondly, it fails to provide the courts with the necessary power to grant bail on a second or subsequent application without resorting to the artificiality of finding that there was "further information relevant to the application that was not previously provided to the court".
A proper rewrite of the Bail Act was called for and has been ignored by the Government. The Children's Court Act 1987 is amended so as to enable a magistrate appointed under the Local Court Act 2007 to exercise the jurisdiction of the Children's Court without being appointed as a children's magistrate. As a result of this amendment, the bill consequently amends the Children and Young persons (Care and Protection) Act 1998, the Children (Detention Centres) Act 1987 and the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009.
The Civil Procedure Act 2005 is amended by the bill to provide for the President of the Industrial Relations Commission or a judicial member of the commission nominated for the time being by the President to be a member of the Uniform Rules Committee. The Civil Procedure Act 2005 and the Industrial Relations Act 1996 are amended to provide for the application of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 in civil proceedings in the Industrial Relations Commission and the Industrial Court. The object of such amendments, according to the Government, is to promote consistency in procedures across jurisdictions.
The bill amends the Confiscation of Proceeds of Crime Act 1989 to make it clear that the power to issue warrants under division 1 of part 3 of that Act is exercisable by an authorised officer within the meaning of the Law (Enforcement Powers and Responsibilities) Act 2002. Other Acts amended by the bill include the Criminal Procedure Act 1986, to enable the Industrial Registrar to make orders commencing summary proceedings under section 246 of the Act with respect to offences that may be dealt with by the President or a judicial member of the Industrial Relations Commission under part 5 of chapter 4 of the Act; the Evidence (Audio and Audiovisual Links) Act 1998, to require all members of the New South Wales Police Force to give corroborative evidence in chief of evidence given by other members of the New South Wales Police Force by audio link or audiovisual link; and the Law Enforcement (Powers and Responsibilities) Act 2002, to make it clear that the eligible applicant for a covert search warrant need not personally intend to carry out the entry and search of the premises as authorised under the warrant.
Finally, the Legal Profession Act 2004 is amended to clarify the power of the District Court to hear an appeal against a decision of a costs assessor under the Legal Profession Act 1987, and the Local Court Act 2007 is amended to enable the Chief Magistrate to appoint any officer of the Local Court to the Local Court Rule Committee. As I indicated earlier, the Opposition does not oppose this bill. However, we are concerned that the amendments to the Crimes (Criminal Organisations Control) Act 2009 and the Bail Act 1978 do not sufficiently resolve the issues, as stated by the Government. Only time will tell.
Ms SYLVIA HALE
[5.21 p.m.]: As is typical of the devious nature of this Government, the Government introduces legislation that contains provisions that are unexceptional and mixes them up with provisions that are completely unacceptable.
The Hon. John Hatzistergos:
Point of order: Ms Sylvia Hale is making imputations of improper motive. The member knows better than to do that. I ask that she withdraw her remarks.
Ms SYLVIA HALE:
To the point of order: I was merely pointing out that the Government is combining in one piece of legislation amendments to bills, some of which are generally acceptable and some of which are unacceptable. The only reason for the Government to combine the amendments rather than put them in separate legislation—as it has been frequently required to do—is to prevent proper discussion of the legislation.
The Hon. John Hatzistergos:
To the point of order: The member said, if I recall correctly, that as is typical of the Government's devious nature, there are aspects of this bill that are acceptable and others that are not. She suggests some conspiracy—I do not where she gets that from—to camouflage material in this legislation and she says it was done for a deliberate purpose.
Ms SYLVIA HALE:
Further to the point of order: As I understand it, a member is unable to defame an organisation. Neither is it improper to impute improper motives to a Government. It may be improper to say that individuals are devious, but I have only said it is the Government that is devious.
Order! Standing Order 91 (3) provides:
A member may not use offensive words against either House of the Legislature, or any member of either House, and all imputations of improper motives and all personal reflections on either House, members or officers will be considered disorderly.
A number of President's rulings since 1987 have dealt with the question of what is an offensive expression. Particularly helpful is a ruling of President Johnson in 1987, which I have quoted on a number of occasions, which states:
Offensive words must be offensive in the generally accepted meaning of that word. When a person is in political life it is not offensive that things are said about him or her politically. Offensive means offensive in some personal way.
The same view should be applied to the meaning of "improper motives" and "personal reflections" as used in standing orders. Here again, when a person is in public life and a Member of Parliament, the risk of being criticised in a political way must be taken. Politics is not an area for sensitive persons. In the course of debate when Members canvass the opinions or conduct of their opponents, they must expect criticism.
In relation to the question of whether or not expressions could be found to be offensive when directed to a group of members, President Johnson ruled further:
There may be occasions on which remarks offensive to an identifiable member may not be regarded as unparliamentary when applied to a group where members cannot be identified.
President Johnson then referred to the following passage at page 433 of May's Parliamentary Practice
expressions which are unparliamentary when applied to individuals are not always so considered when applied to a whole party.
It seems clear to me from this reference that there is a distinction between expressions applied to an individual member and those applied to a group of members. However, it is clear also that some expressions may be so offensive that even when applied to a group of members rather than an individual they may be regarded as unparliamentary. I have taken the opportunity to consult May's Parliamentary Practice
and would draw the attention of members to the following general statement in relation to parliamentary language:
Good temper and moderation are the characteristics of parliamentary language. Parliamentary language is never more desirable than when a member is canvassing the opinions and conduct of opponents in debate.
I would ask all members to take account of that statement and seek to use good temper and moderation when canvassing the opinions and conduct of opponents in debate. Otherwise the Chair may have to take the matter further.
The Hon. Rick Colless:
A good ruling.
Ms SYLVIA HALE:
Yes, indeed, by a wise and venerable judge. I believe that the tactics of the Government are questionable, to say the least. But I am not surprised. The Government has adopted these tactics on many occasions when it seeks to avoid proper deliberation and discussion of provisions of legislation, which many members of Parliament find particularly objectionable. I believe this is one of those occasions. The Greens do not have any concerns about those sections of the bill that deal with the Children's Court Act or the Industrial Relations Commission. We consider they are unexceptional and happily support them. We do have concerns with the proposed amendments to the Crimes (Criminal Organisations Control) Bill 2009. The Legislation Review Committee reviewed the original bill when it came before Parliament. It is instructive to go to the committee's report, which is chock-a-block full of concerns. In relation to the Crimes (Criminal Organisations Control) Bill the report states:
The Committee considers it to be inconsistent with a presumption of innocence when a change in the membership of the organisation [may take place]
The Legislation Review Committee considered that the bill is:
inconsistent with the principles of criminal law to make it an offence to associate with particular people. Offences should proscribe conduct thought deserving of punishment. Merely associating with people, whether they are known to be in a particular category or are merely reputed to be in a particular category, should not be criminal.
In this context, the committee considered:
This bill constitutes an undue trespass on personal rights and liberties by undermining the right of freedom of association and an undue interference on a person's honour and reputation.
Referring to the bill the committee said:
this bill does not determine the minimum level of association that may be defined as "habitual" or "regular" and is therefore, concerned with its broad scope to unduly trespass on individual rights of freedom of association.
The report goes on to state, amongst other things, that the committee believes that the bill is in breach of the fundamental rights of association that are established by Article 14 of the International Covenant on Civil and Political Rights. Other concerns the committee had include infractions of the presumption of innocence, the right to work and issues of strict liability.
I believe this Act to be completely offensive in its intent and in its operations, although I notice that, as yet, no organisation has been declared under this bill. Presumably, the Attorney General is not anxious to see this legislation tested in the courts in the way that the South Australian legislation has been tested. The legislation has not been applied yet, but before it comes into use we now have even more amendments to it. In considering the issues of trespasses on personal rights and liberties the Legislation Review Committee stated:
Proposed Sections 16 (6) and 16 (7) require a person to disclose his or her identity to a police officer who has reasonable cause to suspect that a person is subject to an interim control order being served upon them. The officer can also request that a person remain in a place for a period not exceeding two hours in order for the notice to be served.
I notice that the committee states that it does not find two hours of detention to be unreasonable. I consider it unreasonable because it means that a person may be unable to attend their job, may be unable to go to Centrelink or to collect a child from school—a whole range of possible activities. Yet the legislation proposes that for two hours the police can detain someone without laying a charge, purely on the basis of a suspicion, which the police have not yet confirmed. I find that completely objectionable. The other concern with this provision is the imposition of 20 penalty points for nondisclosure or for providing false and misleading information about one's identity. The committee stated:
The Committee has concerns about the effects of Section 26 (7A) on persons under the age of 18 and other vulnerable and disadvantaged people. The Committee has previously observed that the Crimes (Criminal Organisations Control) Act 2009 is silent as to how persons or members of declared organisations under the age of 18 will be dealt with. It is considered that the penalty of 20 penalty units for non-compliance may disproportionately impact on children and young people and may constitute excessive punishment. Accordingly, the Committee refers these sections to Parliament for its consideration.
I believe that to be a totally reasonable position to take. Twenty penalty units is very excessive, particularly if the person is unemployed, at school or in an apprenticeship. Yet the legislation will impose that penalty on individuals. Whilst the Greens have no problems with supporting those aspects of the legislation that deal with children's magistrates and the Industrial Relations Commission, we have problems with the bill, which deals with the Crimes (Criminal Organisations Control) Act.
Members are put in a very difficult position when it comes to amending the legislation because it has been brought on without any proper warning after the conclusion of private members' business. I believe it is inappropriate to attempt to push this legislation through in the way the Attorney General has, because it excludes proper community debate on particular aspects of this legislation.
Reverend the Hon. FRED NILE
[5.34 p.m.]: The Christian Democratic Party supports the Courts and Crimes Legislation Amendment Bill 2009, which will amend various Acts, particularly the Law Enforcement and National Security (Assumed Identities) Act 1998, the Law Enforcement (Powers and Responsibilities) Act 2002, the Surveillance Devices Act 2007 and the Terrorism (Police Powers) Act 2002, to remove the power of the Attorney General to revoke the appointment of Supreme Court judges as eligible judges for the purposes of issuing search and other warrants and exercising other similar administrative functions. It has been questioned whether the Attorney General would interfere in some way with the role of these eligible judges. I do not believe that would have happened, but to make it absolutely clear the Attorney General has brought forward this amendment.
I also refer to the amendment to the Crimes (Criminal Organisations Control) Act 2009. This legislation—known as the bikie legislation—has been criticised, particularly by the Greens and civil liberties groups. Sometimes the passing of a bill has an effect although people are not actually charged with an offence: I think the legislation has had a major impact on bikie gangs in the State. I hope it is not necessary to charge people under the legislation, but the fact that no-one has been charged does not mean the legislation is a failure; it may be evidence of its success.
To further improve the legislation, the bill will amend the Crimes (Criminal Organisations Control) Act 2009 to enable a police officer to request a person suspected of being a person on whom notice of an interim control order is required to be served or of being subject to a control order and of associating with another person who is the subject of a control order to disclose his or her identity and to make it an offence for the person to fail or refuse without reasonable excuse to disclose his or her identity or to give false or misleading information about it.
I strongly support these provisions, which will make it possible for police officers to carry out their duties on behalf of the community. The bill will also enable a police officer to detain a person suspected of being a person on whom notice of an interim control order is required to be served in order to serve the notice. We are pleased to support this bill.
The Hon. MICHAEL VEITCH
[5.37 p.m.]: I speak in support of the Courts and Crimes Legislation Amendment Bill 2009. The bill proposes amendments to various pieces of legislation. In speaking in support of the bill I focus on those amendments relating to the Bail Act 1978. In 2007 the Government amended the Act to limit the circumstances in which a person could make a repeat application for bail in the same court. It had come to the Government's attention that some defendants had been engaging in the practice of magistrate shopping—that is, making repeat bail applications in the hope of having their matter heard by a more lenient magistrate. There were also reports that other less scrupulous defendants were using bail applications as a means of harassing their victims.
The Government was determined to put a stop to such behaviour. For this reason the amendments we put forward at the time prohibited a person from making a repeat application for bail in the same court unless there were new facts or circumstances. It should be noted that these amendments did not prohibit a person from seeking a review of a bail decision in a higher court. However, as many honourable members would be aware, there has recently been a significant increase in the number of young people being held on remand. Last year the Government asked the heads of our justice agencies to look into the issue and to identify the causes of the increase. As part of this process, advice was sought from the Bureau of Crime Statistics and Research, which identified two major causes: increased policing of bail conditions and changes made to the Bail Act in 2007 to prevent the making of repeated bail applications in the same court.
The Government supports the role police play in ensuring that persons on bail do not breach their bail conditions. Bail conditions are an important means of protecting the community and ensuring that a person does not offend again while awaiting trial. It is therefore necessary and appropriate that police seek to ensure that such conditions are observed. It is also worth keeping in mind that an accused person has rights under the Bail Act to seek a review of the conditions of bail. I have already outlined the amendments that the Government made to the Bail Act in 2007. As I noted, section 22A of that Act now provides that unless there are new facts or circumstances to bring to the court's attention, a person is prohibited from making a repeat application for bail in the same court. However, the Attorney General's Department has advised that a narrow interpretation of these provisions may have led some legal practitioners to delay making bail applications in an attempt to ensure that their client's supposed one chance at bail was not wasted. I understand that this has meant that some defendants are spending longer on remand prior to making an application for bail.
The Government has therefore introduced the legislation to amend section 22A to make it abundantly clear—even to the legal eagles on the other side of the House—that an accused person can make a fresh application for bail if he or she has new information to present to the court. Such new information could include, for example, a report from the Department of Community Services or the Department of Juvenile Justice. The amendments also provide that a lawyer may refuse a client's instructions to bring forward a bail application if there is no new information to present to the court. Previously, that section provided that a lawyer must not do so. This may have contributed to timidity on the part of many defence advocates. These changes are a sensible way of dealing with the unanticipated rise in juvenile remand numbers. I commend the bill to the House.
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Industrial Relations, Vice President of the Executive Council) [5.43 p.m.], in reply: I thank honourable members for their contributions to this debate, and particularly those who supported the legislation. I will not reiterate the bail issues, because my colleague the Hon. Mick Veitch canvassed them. I note that Ms Sylvia Hale cherry-picked bits of the Legislation Review Committee's report in support of her arguments. Of course, when they did not prove effective she conveniently discarded them.
An application for a declaration under the Crimes (Criminal Organisations Control) Bill is a matter for the Commissioner of Police, not me. When the Commissioner of Police is able and ready to make his application, he can do so. As I have previously advised the House, extensive work has been carried out by the New South Wales Police Force, and it is in that context that a number of these proposals have been introduced to facilitate the processes by which any such application will ultimately be addressed.
Ms Hale raised some interesting issues about associations. She said that she regards the legislation as offensive because it criminalises certain associations. Of course, she would object to a large number of pieces of legislation on that test. The most important would be legislation dealing with apprehended violence orders. They involve an application based on a subjective fear on the part of a victim of domestic violence. Such a person makes a claim in court that he or she apprehends a position of vulnerability and seeks an order from the courts on the balance of probabilities to restrict the person who is the subject of the order from associating with the applicant or victim. I have not heard Ms Sylvia Hale objecting to those restrictions.
Nor presumably would she object to the bail conditions that are invariably imposed on persons who have not been found guilty based on a balancing act taking into account different considerations. Again that may restrict the parties with whom the person can associate. I have not heard the member objecting to parole. Indeed, she regularly supports the parole of prisoners, which again can involve restrictions being imposed relating to people with whom the parolee can associate and where the parolee can go. Balances must be struck in this area. I do not accept the broad thrust of the argument that this is somehow out of the box given the way we deal with associations that have public safety implications.
We must remember that before any such violation of an order can be obtained a Supreme Court judge must make a declaration, an application must be made for a control order that the person will ultimately be subject to, and a criminal charge must be laid that the person has violated the relevant control order. In addition, the legislation contains a large number of safeguards that prevent its misuse. Ms Sylvia Hale also made a number of observations about persons under the age of 18. She quoted from the Legislation Review Digest about those issues. I again remind her that the Children (Criminal Proceedings) Act and the Young Offenders Act are available in appropriate circumstances to deal with situations that are suitable to be dealt with under the provisions of those Acts.
There is nothing sinister about these provisions, nor is a subterfuge being perpetrated. The member appeared to deal adequately with the issues she raised. I heard only two criticisms. Of course, she conveniently did not mention the restriction that I have advocated and articulated in this legislation on my own ability to remove declared judges or to select judges who can hear applications. This issue has been raised in a number of quarters. I indicated that those provisions have never been used, although they have been in the legislation for a long time. Nor is it likely that they would be used. I give abundant assurance to all persons involved in the debate on these issues that following consultation with those stakeholders a proposal has been incorporated in the legislation that makes that proposition clear; that is, the issue of the eligible judge—and in particular the selection of the judge—who will determine the matter is not an issue for me or any other Minister. I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Leave granted to proceed to the third reading of the bill forthwith.
Motion by the Hon. John Hatzistergos agreed to:
Bill read a third time and returned to the Legislative Assembly without amendment.
That this bill be now read a third time.