Criminal justice, police powers and mental health

Proposed amendment to NSW bail laws : indecent and unwise haste

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.

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NSWCCL President opposes police association call for new mandatory minimum sentencing

Yesterday the  NSW Police Association called for a  two year mandatory sentence for people convicted of assaulting police.  NSWCCL President Stephen Blanks has spoken strongly against this proposal:

'The Police Association should take notice of the recent debate on mandatory sentencing in the NSW Parliament.  Mandatory sentencing is unfair and not effective to reduce crime.  Judges need to have discretion when imposing sentences so that all relevant circumstances can be taken into account.' 

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Trivial and vexatious police prosecutions

Last year David Heilpern a senior NSW Magistrate inferred that there were possible collateral (political) reasons for a police prosecution against two coal seam gas protestors on the North Coast. 

In November the Council wrote to both the Ombudsman and the Minister for Police calling for an investigation into the issues involved which go to the very heart of the administration of criminal justice in NSW.  Copies of the correspondence are attached.  No response has been received from the Police Minister.  Council members met with the deputy Ombudsman and a principal investigator from that office in December last year.  No information has yet been forth coming.

The Council will not let this rest and will be seeking a further meeting with the Ombudsman upon the return of the principal investigator at the end of April.

NSWCCL Letter to Ombudsman

NSWCCL Letter to Police Minister

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Submission to NSW Ombudsman's review of the use of the consorting provisions by the NSW Police Force - Division 7 Part 3A of the Crimes Act 1900 - November 2013

NSWCCL has made a submission to the  NSW Ombudsman's review of the use of the consorting provisions by the NSW Police Force - Division 7 Part 3A of the Crimes Act 1900 - November 2013.

The current NSW consorting laws impinge on human rights to a degree that far exceeds any benefit that may be obtained from them. The NSW Ombudsman is currently reviewing the police use of these laws, these laws should be repealed and/or radically amended.

Click here for the submission

Ombudsman's issue paper

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Submission to the Senate Inquiry on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 - February 2014

NSWCCL has made as submission to the Senate Inquiry on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013.

We make the same comments on proposed section 474.40(2) as we did on the corresponding section in the previous version of the Bill. As argued previously, intending to commit a crime is not itself a crime, and should not be made a crime. If crimes have occurred, they are what a person should be charged with. If they haven't, a person should not be charged for what he or she merely has in mind as a plan.

NSWCCL recommends that this Bill should be rejected.

Click here for the submission

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Mandatory sentencing for “one-punch” assaults causing death with drug and alcohol related factors

The NSW Council for Civil Liberties opposes the NSW Government’s proposal for mandatory sentencing for “one-punch” assault causing death with drug and alcohol related factors.

The proposed new laws will mean that persons found guilty of drug and alcohol fuelled “one-punch” assaults causing death will be subjected to a mandatory minimum sentence of 8 years in jail with a maximum of 25 years.  Mandatory sentences for “one-punch” assaults have already been enacted in West Australia and the Northern Territory.  

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State government misses historic opportunity to repeal 'dangerous' bail laws

The NSW Council for Civil Liberties today labelled the State Government response to the Law Reform Commission report on bail a “major disappointment”.

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Submission to the Select Committee on the Partial Defence of Provocation - October 2012

NSWCCL has made a submission to the Select Committee on the Partial Defence of Provocation.

The NSW Council for Civil Liberties reiterates its opposition to any significant changes to the existing partial defence in the absence of a compelling case to the contrary.

View the submission here

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Submission to the Criminal Law Review at the Department of Attorney General and Justice regarding the Inquiry into the right to silence of an accused person - September 2012

NSWCCL has made a submission to the Criminal Law Review at the Department of Attorney General and Justice regarding the Inquiry into the right to silence of an accused person

The proposed bill will abolish the right of an accused person to decline to answer questions by police without any adverse inferences being drawn in a subsequent trial by the prosecution or the court. To propose that silence implies guilt or prevarications is irrational and contrary to the fundamental principle of the presumption of innocence.

View the submission here

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Submission to the Joint Select Committee on Cyber-Safety regarding the Inquiry into Cybercrime Legislation Amendment Bill 2011 - August 2012

NSWCCL has made a Submission to the Joint Select Committee on Cyber-Safety regarding the Inquiry into Cybercrime Legislation Amendment Bill 2011

The submission raises a number of concerns, particularly the sharing of Australian information with foreign law enforcement agencies who may support torture/death penalty or may otherwise not employ appropriate protection and security measures concerning the highly sensitive and private nature of prospective data.

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