Concerns over human rights standards in Australian juvenile justice centres were brought to national attention with Four Corners’ recent expose on Don Dale Detention Centre in the Northern Territory. However, these revelations were not unprecedented. After a two-year inquiry, Australian Law Reform Commission’s 1997 Seen and Heard report presented a number of proposals for reform of juvenile justice processes and detention facilities.
15 years later, the UN Committee on the Rights of the Child (‘UNCRC’) noted that Australia’s juvenile justice system ‘still requires substantial reforms for it to conform to international standards.’ In 2013, the Australian Human Rights Commission called for a review of the Australian Government’s reservations to the Convention on the Rights of the Child. It also recommended ratification of the Optional Protocol to the Convention Against Torture and better monitoring of juvenile justice legislation and policy. These were echoed in a report published by Amnesty International last year, especially to address the overrepresentation of Aboriginal children in detention.
It follows that, while only a small proportion of Australia’s youth population has contact with the criminal justice system, there remain serious, yet still unaddressed, concerns about protection of the rights of those who do. This report will evaluate juvenile justice legislation across Australian states and territories in relation to international human rights law. Those areas of law which do not comply with Australia’s human rights obligations include: the age of criminal responsibility for young people, mandatory sentencing, detention on remand, discipline, living conditions within detention centres and both national and international mechanisms for investigation of detention facilities. In doing so, the report will highlight how law reform and other practical initiatives may be necessary to better protect the civil liberties and human rights of children throughout all stages of the juvenile justice system; in particular, the right to protection from cruel, inhuman or degrading treatment, freedom from arbitrary detention and the right to a fair trial...
 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) .
 Australian Human Rights Commission, Children’s Rights Report 2013 (2013)
 Amnesty International, A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia (2015) <http://www.amnesty.org.au/images/uploads/aus/A_brighter_future_National_report.pdf>
 Australian Institute of Health and Welfare, Youth Justice in Australia 2014-15 (April 2016) Australian Government <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129554930> 2.
In March this year, the NSW government passed legislation aimed at intimidating anti-coal seam gas protesters, joining a growing trend toward restricting environmental activism in Australia. This legislation, The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, follows similar legislation targeting Tasmanian anti-logging protesters and Western Australian environmentalists. The two primary purposes of the bill are to confer expanded powers on police and to severely enhance penalties for protesters.
Expansion of Police Powers
Under this legislation, police are empowered to give directions to protesters if they find the directions necessary to avert a serious safety risk. Because coal seam gas protests often occur on fracturing sites near heavy machinery, it will not be difficult for police to produce pretextual safety-related justifications in order to give directions to protesters, including directions to disperse. It is an offence to fail to heed these directions. The legislation also confers the power to stop, search, and detain without a warrant those protesters whom the police suspect are in possession of devices used to “lock on” or secure a person to fracturing equipment.
These changes give police wide discretion to control the activities of protesters, and even potentially to disperse or preemptively prevent protests based on police assessments of “safety risks,” which are left undefined by the law. They also allow police to search and detain people on the mere suspicion that they possess completely lawful and harmless items such as rope or glue. As the NSW Law Society warned in their submission opposing the bill, these expansions of police power are not offset with increased judicial oversight.
Anti-coal seam gas protesters should comply with police directions if they want to avoid legal consequences, but should also ask police to provide a safety-related justification for any directions, to check that police are operating within the contours of the law. Protesters should be aware that they may be searched or detained on suspicion of possessing securing devices and that these devices, if seized by the police, are forfeited to the government.
Measures to Deter Dissenters
This legislation also significantly increases the penalties associated with anti-coal seam gas protests. Prior to the bill’s passage, it was illegal to trespass on enclosed lands and such trespass was punishable with a maximum $550 fine. The bill increases this penalty by ten times for trespassers who “interfere with…[a] business.” The increased penalty also attaches to trespassers who merely intend to or attempt to interfere with business activities. This means that anti-coal seam gas protesters who are judged to intend to interfere with fracturing activities can be slapped with a $5,550 fine. For organizations which send many protesters to engage in collective action, the combined impact of these fees, assessed against each protester, could be massive.
Perhaps the most serious change enacted by this law is the redefinition of the crime of “interference with a mine” to include actions in which many anti-coal seam gas protesters regularly engage. This crime is punishable by up to seven years imprisonment, providing a serious deterrent against participating in anti-coal seam gas protests. The new definition of “mine” includes all extraction, exploration, construction and decommissioning sites for petroleum, gas and minerals. The crime encompasses intentionally or recklessly hindering the working of the equipment of a mine. The practical effect of this change for anti-coal seam gas protesters is that many of their most effective protest strategies – such as locking on to fracturing equipment or blockading to prevent the movement of such equipment – now constitute the serious crime of “interference with a mine.” These changes heighten the risks that anti-coal seam gas protesters must take to express their dissent, imposing heavy fines and jail time for even the slightest interference with the profit-generating activities of energy corporations.
These changes are an expression of the NSW government’s frustration with anti-coal seam gas protesters, who have been successful in deterring energy corporations’ extraction of coal seam gas through direct action campaigns. Although there have been some cases of minor injuries involved in such environmental protests, they have mostly been associated with police activity in the course of arresting protesters. The concurrent introduction of legislation reducing fines for energy corporations which engage in unlicensed exploration demonstrates that business interests are at least as salient for the NSW government as the “safety” interests which purport to justify these laws. Because the activities which are given heightened penalties in this bill were already prohibited before this law was passed, it is clear that the government intends to send a chilling message to anti-coal seam gas protesters.
Despite vigorous opposition from the Labor Party and the Greens, the NSW Parliament last week passed extraordinary new controls on the right to protest, on freedom of movement and association and a wide range of other constraints using police powers conferred by Serious Crime Prevention Orders (SCPO) and Public Safety Orders (PSO).
If that was not enough the Premier and Police Minister simultaneously introduced a disturbing new counter-terrorism bill into the Parliament -The Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016. This will allow the detention and interrogation of persons aged 14 and over for up to 14 days.
We expect this Bill to be pushed through the Parliament this week.
The NSW Parliament is this week considering two disturbing proposals for new laws creating ‘Serious Crime Prevention Orders’ and ‘Public Safety Orders’ to combat organized serious crime.
The NSW Council for Civil Liberties (NSWCCL) has major concerns about both these proposals.
The Serious Crime Prevention Orders (SCPO) regime is an extraordinary, unwarranted and dangerous proposal.
It imposes major controls on persons – including not only those who have not been charged or convicted of any criminal offence- but also persons who have been found NOT guilty or have had their convictions quashed.
The target group potentially caught up in this regime is huge and includes law abiding citizens.
The SCPO will constitute a rival criminal justice regime to the courts. It allows police to sidestep the courts for the less rigorous option of imposing open-ended control orders on specified persons. A person found not guilty can notwithstanding have strict controls on their lives imposed for 5 years.
The Organised Crime and Public Safety Bill will give police unprecedented discretionary powers to stop a person (or ‘class of persons’) from attending public events, premises or areas.
The police officer has only to be ‘satisfied’ that the person’s presence poses ‘a serious risk to public safety or security’ and that the imposition of a public safety order is ‘reasonably necessary’. The grounds for making these judgements are very broad.
This Bill comes fast on the heels of the passage of the contentious and outrageous Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 in March.
A person who contravenes these orders will be committing an offence with a penalty of up to 5 years imprisonment.
These Bills are part of an accelerating trend of disproportionate and extraordinary laws which undermine individual liberties and rights and the Rule of Law in NSW. This trend must be resisted.
NSWCCL urges the NSW Parliament to reject both these unjustified and unnecessary Bills.
For more information on this bill:
Despite widespread opposition from the legal profession, anti- CSG and environmental groups, farmers, unions, concerned citizens and, of course, NSWCCL the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 was forced through Parliament on Tuesday.
NSW now has another set of laws which encroach on fundamental democratic rights – in this case the right to peaceful protest. It is unnecessary and disproportionate legislation. We will maintain our opposition and campaign for its repeal.
The Labor Party and the Greens made last ditch efforts to amend the Bill to remove its most disturbing provisions. Failing that they called for the referral of the Bill to a Parliamentary Committee for proper consideration and public consultation.
Not surprisingly the Government rejected all their amendments- with the support of the Shooters Party and the Christian Democrats. The latter was a surprise given that Fred Niles had addressed the protest rally against the Bill outside Parliament House on Tuesday assuring the crowd of his strong opposition to the Bill and his support for the right to protest in a democracy like Australia.
Amendments proposed by the Shooters and Fishers party were however accepted by the Government. One of these provides for a review of the operation of the legislation by the Minister after 3 years. Much will have happened in three years in this important community debate around CSG activities. An earlier review would have been preferable to provide some insight into the impact of the legislation on legitimate protest around this issue. It would also been far preferable if the review was to be done by someone in a more independent position than the Minister – eg parliamentary committee or the Ombudsman – and that community consultation be required as part of the review.
The other amendments were minor improvements. The most significant ensures that police directions given to protesters who obstruct traffic only refer to the individuals so doing and not to the whole gathering.
A sad few days in the NSW parliament.
Read more about this bill on our website:
The outrageous Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016– better know as the ‘anti-protest’ bill- will be further debated in the NSW Legislative Council today.
This bill is a deliberate Government attack on the right to public assembly and public protest in NSW and proposes unwarranted and dangerous expansions of discretionary police powers.
This Bill is part of a systematic determination by the NSW Government to constrain effective opposition by the community to reckless CSG and other mining activities.
The Bill blatantly privileges the CSG and mining interests over the right of the community to protect the public good - in this case protection of water, agriculture and the environment - through public assembly and peaceful protest.
On Tuesday NSWCCL joined many other groups and 1000 protestors outside Parliament house to vociferously oppose this Bill. The Greens, the ALP and Fred Nile spoke against the Bill. The Law Society and the NSW Bar Council sent letters to the Government opposing the Bill. A current survey provides definitive evidence of community opposition to this Bill.
Nonetheless it appears likely that the Bill will today become law with the Shooters and Fishers Party supporting its passage.
Without the numbers to block the Bill in the Legislative Council the ALP and the Greens have proposed amendments which would remove the most obnoxious elements of the Bill.
If the Government is responsive to community rather than CSG and mining views, they should seize the opportunity provided by these amendments to retreat from this unwarranted and unwise legislation.
Dr Lesley Lynch
Read more about this bill on our website:
COPS Database Forum: October 21st 2015
On October 21st 2015, the NSW Council for Civil Liberties in conjunction with the Law Society of New South Wales held a forum on the Computerised Operational Policing System (COPS) database.
The panel comprised Jackson Rogers, the NSW Council for Civil Liberties’ Convenor – Justice, Police & Mental Health Action Group (Chair); Camilla Pandolfini, Senior Solicitor at the Public Interest Advocacy Centre; David Porter, Senior Solicitor at the Redfern Legal Centre; and Chris Watson, barrister from Forbes Chambers.
The event was a great success, and discussion both within the panel and with the attending audience brought many issues to light about the functions and impacts of the COPS database including:
- Can a person access information held about them on the COPS Database?
- How do police make entries on the COPS database?
- Are COPS Database entries used in criminal trials?
- What about false entries in the Database?
- Is the COPS Database just proactive policing, and is that not a good thing
- What would be an appropriate oversight mechanism?
To read the full report and minutes of the event, please follow the links below. If you are interested in this forum, or others like it, subscribe to our newsletter for more information on upcoming events, become a supporter and tell us what you think, or join NSWCCL and help support the fight for civil liberties!
The NSWCCL, in partnership with the Law Society, is planning a forum on the recent COPS Database, and its implications for the public. Notable speakers from the police force and legal professsion are expected to host a conversation on many of the matters associated with the program. One of these is the recent settlement awarded to a class action lawsuit on behalf of young people who whose information was incorrectly entered into the database and resulted in wrongful arrest.
The parties to a class action on behalf of young people, run by The Public Interest Advocacy Centre (PIAC) and Maurice Blackburn, have reached a settlement of at least $1.85 million. The settlement is subject to final Court approval and paves the way for the young people affected to be properly compensated. The class action is on behalf of young people who were allegedly wrongfully imprisoned byNSW police as a result of problems with the NSW Police database.
You may be eligible for compensation if:
1. you faced charges in the Children’s Court of New South Wales; and
2. you were arrested before 20 May 2014 by the New South Wales police for a breach of bail conditions; and
3. you weren’t actually on bail at the time you were arrested, or you were on bail but not subject to the condition you were arrested for.
Find out more here: Public Interest Advocacy Centre
**And look out for further notices about our upcoming COPS Database Forum here**
NSWCCL recently made a submission to the NSW Sentencing Council’s Review of proposals relating to sentencing provisions for alcohol and drug fuelled violence. The review was initiated by proposals made from the Thomas Kelly Youth Foundation.
The Attorney General has asked the Sentencing Council to examine issues raised by the section 21A of the Crimes (Sentencing Procedure) Act 1999. NSWCCL's submission outlines a number of concerns relating to the proposed changes, including:
- There is no demonstrated need to introduce a mandatory aggravating factor where the offender was under the influence of drugs or alcohol. This should not be introduced since it would fetter the discretion of a sentencing judge, who can already take intoxication into account in sentencing, and the definition as proposed is unnecessarily broad.
- The concept of vulnerability should not be expanded as proposed with a new definition. This is unnecessary as CCL considers that vulnerabilities as defined in the proposal are already covered under the Act.
- In relation to any other sentencing measures that might be considered, CCL highlights that mandatory sentences for offences committed under the influence of alcohol already in place in the Northern Territory appear to have been unsuccessful in reducing their incidence.
Finally, NSWCCL urges the Government to provide a response to the recommendations made in the NSW Law Reform Commission 2013 Report on Sentencing given its relevance to the proposals in this review.
The Bail Act 2013 was a product of two years’ work by the Law Reform Commission and a team of experts. The Report was tabled in 2012. The Government then carefully considered it and in 2013 passed a new Act which did not merely rubber-stamp the LRC Report. The Act was passed unanimously – no politician, from any party, in either House, voted against it.
There was then a delay while the criminal justice agencies absorbed the changes, trained staff, prepared processes and documentation and got ready for implementation. A great deal of administrative work was done by Police, DPP, Legal Aid, Bar Association, Law Society, Courts, etc.
The Act came into force on 20 May 2014, with much fanfare from the Attorney General. Soon after there were three high profile cases of bail being granted (Hawi, Fesus and Ibrahim). The tabloid media agitated. The DPP appealed the Ibrahim matter and his bail was refused – the system was working as it was intended to. A reading of the judgments in the other two cases would show that principles were properly applied and the decisions were uncontroversial.
On 27 June 2014, just over five weeks after the Act came into effect and before any meaningful data had accumulated (as acknowledged by Mr Hatzistergos), the Premier announced a review, supposedly because the Act was not protecting the community as much as had been intended.
The review was done in just over four weeks by one person. His Report was published today (5 August 2014), a Bill is ready (implementing all the reviewer’s recommendations) and it will go to Parliament next week.
The Government has acted with indecent and unwise haste. There has been no consultation with anyone about the recommendations or the substance of the Bill.Read more