lowering the standards of justice

Wednesday, 28 March 2001 NSWCCL media release: 4/2001


Increasingly, governments and oppositions at both state and federal level are trying to outdo each other in the Law and Order Auction. They are committing themselves to policies that give police extraordinary powers, lower the standard of justice, make convictions easier, and increase punishment. 

We are seeing policies that begin from the perspective of the “victims of crime”. Criminal Justice is now often about the efficiency of conviction and the satisfaction of victims about the results. These are important considerations but they should not be the basis or the most important consideration of law and order policy. If laws keep changing to remove the rights of citizens we may well soon have a criminal justice system based on alarming principles where it no longer matters that innocent people are jailed so long as we get all of the guilty ones, and penalties that are based on revenge for the crime committed regardless of the circumstances. 

Lately, almost every week sees another announcement by State and Federal governments that there will be tough new laws and new police powers to combat crime. What this really means is that they are yet again lowering the standard of justice. The criminal justice system in Australia was built on a foundation of important principles designed to protect the innocent above all other concerns. We now see those principles being eroded where the rights and liberties of ordinary citizens are being quickly removed in the “interests” of being tough on crime. 

Tougher penalties in politically popular areas have led in New South Wales to a significant problem where some relatively minor offences are dealt “with the full force of the law”, creating a large disparity with more serious offences. For example the Traffic Amendment (Street and Illegal Drag Racing) Act 1996 allows the government to impound your vehicle for three months if you are convicted of an offence of causing a vehicle to undergo “sustained loss of traction”. If you are convicted twice, in your lifetime, them you forfeit the vehicle permanently. The fines are higher than fines for offences such as Driving under the influence of alcohol. To compare, it is highly unlikely that anyone was injured by a “wheelie” whilst it is well known that alcohol has caused many deaths and serious injuries on our roads. This law was brought in by the Carr Government in response to a perception that wheelies were a large problem in the community. It is well known that “wheelies” cause offensive noise and smoke but should they really be treated more seriously and with heavier punishment than DUI? It is popular move to crack down on this issue but is it not fair and just in the context of serious crime. 

The new laws announced by Premier Carr about Cabramatta are also of significant concern. For once it would be a positive step to use more resources on combating drugs through education and health than law enforcement. We have been fighting the war on drugs with enforcement for more than a century and are worse off now than ever before. Prohibition may be popular but it just doesn’t work. We need to recognise that drugs are a health issue and deal with them in a mature way instead of just locking users up. In Cabramatta the laws may allow police to arbitrarily determine that a house is a “drug house” and then arrest anyone entering or leaving the premises. They may also the government to confiscate a dwelling that is being used as a drug house. It will set a dangerous precedent in that people are considered guilty and subject to arrest just for having been in the vicinity and will have to then establish their innocence. Police will also be able to conduct medical examinations on people suspected of hiding drugs inside their person and drug dogs will be deployed against the public for random searches. These are unnecessary steps that will lead to convictions but the bulk of convictions will be of drug users and even if it solves the problem in Cabramatta it will just shift it somewhere else. 

A pre-trial disclosure bill is currently going through the NSW parliament that will force an accused person to outline their case to the prosecution before a trial begins. Both of these examples fly in the face of the most important principle of justice, which is to protect the innocent. First the prosecution must establish their case. There must first be evidence of guilt before a defence is even necessary. These new laws may force an accused person to establish their innocence first, even though there may be nothing more than a baseless accusation made against them. 

The federal parliament is about to agree to extend the powers of the National crime Authority to question suspects. The powers will remove the right to silence of suspects so that they are forced to answer questions that may incriminate them. Through the use of ‘clever questioning’ the Authority will be able to gather evidence allowing them to prosecute the person they are questioning. They will also be able to hold you in contempt, and jail you, if you refuse to cooperate. The government is quite content that the powers will be oversighted by the Ombudsman to ensure they are not abused by the NCA. Often criminals are accused of ‘laundering’ illicitley obtained money at casinos. Placing the Ombudsman at the end of a chain of bad policy is in itself a form of laundering – of bad laws. The Ombudsman will not have the same powers as the NCA to investigate a complaint against the NCA and information may be withheld from the Ombudsman if it is considered secret. The Ombudsman will not be given any particular increase in resources to do this additional work. 

This change will also create a jurisdictional anomaly in the law where if you are a target of the NCA you will not have a right to silence and will be subject to their many other extraordinary powers. If you are arrested by an ordinary police officer in NSW for exactly the same offence you will retain your rights. 

We have also seen governments steadily increase the levels of sentencing in NSW and federally under the guise of tougher penalties. With the widespread privatisation of government services, gaols have also been privatised in the interests of efficiency. The Wakenhut Corporation owns the Junee Jail and is contracted for the federal immigration detention centres. We now have private corporations with a direct financial interest in placing more people in jail and keeping them there for longer. Government decisions to get tough on crime, including drug users, are forming the backbone of these corporate profits. 

If the criminal justice system is to work and we are to remain a free society then we must stop the erosion of liberties. If governments make it easier to convict citizens the outcome is that more citizens end up in jail, including innocent ones. I do not think that easier convictions are the answer. The best result for all is to ensure that the strictest standards have been met and that the prosecution has proved its case beyond reasonable doubt and the defence has had an equal ability to access resources. If we lower the standard by giving more resources and powers to police, allowing them to ‘cut corners’ then we increase the risk that the innocent will be caught up in the process. It is vitally important that victims of crime are reassured that the person convicted is really the guilty person not just the most convenient person. 

28 March 2001 

Cameron L Murphy 
NSW Council For Civil Liberties Inc.