PUBLIC STATEMENT – 9 NOVEMBER 2020
The New South Wales Council for Civil Liberties (NSWCCL) is opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill) which provides police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.
The Second Reading Speech highlights that the purpose of the Bill is to “assist police to gather evidence of drug supply and drug manufacture effectively and efficiently”. The Bill is designed to have a “deterrent effect on a person subject to a DSPO, who may reconsider whether re‑engaging in a lifestyle involving the manufacture or supply of illicit drugs is worth the increased risk of police detection and further conviction”.
The Bill introduces a 2-year pilot scheme enabling police to apply for drug supply prohibition orders in 4 specified local area commands, against a person who is over 18 and has been convicted of “a serious drug offence”.
The orders would allow police to stop, detain and search the person subject to the order and certain vehicles, aircraft or premises, without a warrant. The application may be made by police up to 10 years after the person is convicted of the offence.
The NSWCCL is deeply concerned that the low threshold in relation to the definition of “serious drug offence” operates to cast the net unacceptably wide. Section 5(2) lists offences under the Drug Misuse and Trafficking Act 1985 that qualify as a “serious drug offence”. The list of offences is too broad. For example, it includes section 25(1) (supply a prohibited drug) but excludes trafficable and small quantities. This means the indictable quantity is the threshold. The indictable quantity for many drugs is not very high. For example, the sale of MDMA, for the amount of 1.25g, and amphetamine is 5 grams.
The Bill provides that a Magistrate may make an order if a person is an “eligible person” and if they are likely to engage in the manufacture or supply of a prohibited drug. In deciding whether a person is likely to engage in manufacture or supply, the court may take into account “information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences”.
The Bill must be strengthened to ensure that Magistrates must take into account any information adverse to the making of the order and it should also be mandatory that the Magistrate be advised of and take into account any alternative means of obtaining evidence (such as an application for a warrant).
We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.
Although an order can only be made against someone who is 18, a juvenile conviction can still trigger an application for an order once the person turns 18. Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.
The NSWCCL oppose other aspects of the bill which are unacceptably broad, including:
- the powers for items to be seized that are not drug related.
- the power for searches of premises and vehicles in the absence of the owner/controller
- the power to search premises “at which the person resides” and “premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person”. Searches should only be allowable where police reasonably suspects the premises or vehicles are being used for an unlawful purpose involving the manufacture or supply of a prohibited drug.
The minimum period of the order is 6 months and the person who the order is made against is unable to apply for revocation within 6 months of service 13(8). This minimum period is far too long and inability to apply for revocation unexplained and unjustified.
Other persons affected by the orders
The Bill does not give appropriate consideration to the impact the order may have on third persons. Section 7(5) states that an affidavit accompanying the application should identify persons who may be incidentally affected by the order. Police applying for the order should have a positive duty to investigate and put before the court any person who may be affected by the order and demonstrate to the court that they have engaged in investigations relating to third parties. Police should also be required to indicate the age and any vulnerabilities of third parties who may be affected by the orders.
The NSWCCL suggests a comprehensive list of matters to assist police in identifying the sorts of matters which may be adverse.
Notice and procedural fairness
Under this scheme, the person who is the subject of the order does not have to be present or given notice of the search but is only required to be given a written notice after the search. We oppose the lack of notification and a search being conducted without the person being present.
The ordinary rules of procedural fairness do not apply. The Second Reading speech reasons that lack of a notification, presence or submissions by the person against whom a DSPO is sought is to protect confidential criminal intelligence. However, the protection of confidential criminal intelligence needs to be weighed and balanced with the right of a person to be informed of an application made against them to deprive them of the opportunity to be heard.
If the applications remain without notice and in private, we are of the view that consequences for police should be built into the scheme for applications which do not properly disclose matters adverse to the making of the order, including immediate revocation of the order.
The Bill also provides that there is no entitlement to know the reasons for the decision for making the order. This is unacceptable, anyone who has an order against them should be entitled to know the reason as to why their liberties are infringed upon. Protections can be built in to protect particularly sensitive information.
The NSWCCL supports the requirement that notice be given to an Oversight Commissioner. It is recommended that greater participation for the Oversight Commissioner is provided for including monitoring compliance of the application process, the right to make submissions on the application and monitoring compliance with carrying out the orders.
The Areas where the pilot scheme will operate
We also question the 4 areas which have been nominated as pilot scheme areas: Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western Local Area Commands. It is likely the nominated pilot scheme areas will disproportionately impact indigenous people, marginalised groups and people of low socio-economic status.
The NSWCCL acknowledge the harm that illicit substances have on the lives on individuals and their families and the harm they cause communities. Police currently have the powers necessary to investigate the supply and manufacture of drugs. The extraordinary powers provided by this Bill diminish protections and civil liberties of those subject to the order, and third persons who may also be affected by an order. NSWCCL does not support the enactment of this Bill. If the Bill is to pass, significant amendments must be made, in particular to the length of the orders, the breadth of the criteria of “eligible person”, the factors to be taken into account when making the orders by the court and police obligation to inform the court of adverse impacts of the orders.
See the Bill HERE.
2020 NSWCCL AGM
Item 9.2 Policy on ICAC
NSWCCL strongly affirms the crucial role of the Independent Commission Against Corruption in NSW. As Richard Ackland writes, the episode currently playing out with respect to Daryl Maguire, and incidentally, Gladys Berejiklian, is “a timely reminder of the disinfecting sunlight that ICAC is capable of shining”. To quote our President, “while the present proceedings may not encourage federal parliamentarians to move forward more speedily with a federal ICAC, they are certainly encouraging the electors to push for one.”
NSWCCL deplores the recent cuts to ICAC’s funding, which Chief Commissioner Peter Hall QC warned in 2019, “have an immediate and serious effect on the commission’s frontline services, and therefore its ability to fight corruption.” ICAC should be funded independently of the usual funding process for government agencies; it is not like any other government agency. Such changes would help temper the influence which the Executive can potentially wield to hinder the fight against corruption in NSW.
That the proposed policy on ICAC be adopted.
Moved at the NSWCCL AGM October 21st 2020 by: Jared Wilk
Last month, 23 June 2020, three members of the NSWCCL Committee, President Nicholas Cowdery AO, QC, Vice-President Dr. Eugene Schofield-Georgeson and committee member Jared Wilk (co-Convenor of Human Rights and Civil Liberties Action Group), met with NSW Commissioner for Police Mick Fuller and Deputy Commissioner Jeff Loy. Law and policy issues relating to strip searching, drugs, protests and policing of Indigenous people were discussed.
The NSWCCL is grateful that the Commissioner and his deputy were willing to engage in meaningful and open dialogue with us. We consider this meeting and the willingness of the Commissioner to engage in future dialogue to be a positive development and an opportunity for constructive discussion in relation to the issues which are important to the Council’s principles and values.
We will continue to advocate strongly for improvements and reform in relation to law, policy and internal policies and guidelines which are relevant to policing and to work with the community to strengthen and protect civil liberties and human rights in NSW.
The NSWCCL has written to the Commissioner of Corrective Services NSW, the NSW Health Minister and the CEO of Justice Health to express concerns in relation to the health and safety of persons in custody in NSW in light of the current COVID-19 pandemic.
The Council notes that there have been no confirmed cases of COVID-19 within the inmate population and that 23 have been isolated for testing. We note that there was a confirmed case of a healthcare employee at the Long Bay prison hospital in March 2020.
Whilst we are much relieved that NSW has not experienced an outbreak in our prisons to date, correctional centres remain a ‘high risk’ setting, as identified by the Australian Government Department of Health and we hold concerns in relation to:
- Issues impacting inmates’ capacity to social distance
- The impact on inmates’ mental health and wellbeing as a result of restrictions to visits, lockdowns and reduced access to program.
- Access to mental health care in this time
The letter raises the following questions -
- Could you please provide information as to how social distancing is being enforced and how contact with high risk items such as dishes and laundry is being managed?
- Could you please inform us in relation to how are visits currently being facilitated and are there sufficient facilities to cope with the demand for communication with family? Is there a plan to allow a return face to face visits and if so, what will be the restrictions associated with these visits? In relation to rehabilitation programs, could you please let us know the policy in relation to restrictions, in relation to what programs are currently restricted and if known, when/how will programs resume?
- Could you please let us know whether any inmates have been released early to parole by the Commissioner under the Crimes (Administration of Sentences) Act 1999 (and regulations relating to COVID-19) and whether there is an intention to reduce the prison population further through early release?
Read the full letter HERE.
Letter sent via email to:
The Hon Brad Hazzard - Minister for Health
Peter Severin - Commissioner, Corrective Services NSW
Gary Forrest - CEO, Justice Health
Police officers who conducted strip searches of children hadn't been properly trained and didn't understand the law on what they were doing, a series of landmark watchdog reports has found.
The conduct of NSW Police officers in carrying out strip searches of teenagers at music festivals has been found to be unlawful in a series of landmark reports by the NSW Law Enforcement Conduct Commission.
The reports also criticised the use of police discretion in finding appropriate grounds to justify a strip search; and then the subsequent conduct of the strip search as it applies to people under the age of 18.
The NSW Law Enforcement Conduct Commission said police couldn't justify ordering people to strip naked on a general belief that some music festival patrons would conceal drugs.
NSWCCL Vice President, and convenor of CCL's Police Powers action group, Eugene Scofield-Georgeson, said the report confirms that strip searches of minors at festivals must end. 'These findings are further evidence for halting the practice of invasive police searches of children, led by drug dogs, at music festivals'.
The report comes only days from an announcement that police chief Mick Fuller is to receive an $87,000 pay rise at the height of the coronavirus pandemic, making him one of the state's highest paid public servants.
NSWCCL is crowdfunding for a podcast series, Strip Searches and the Law, that will address rights and privacy for festival goers, and those approached by drug dogs/police. Pre-production of the podcast has been postponed during the COVID-19 health emergency.
Over 400 Former US Attorneys, DOJ Leaders and Attorneys, and Judges Urge President Trump to Release Vulnerable Individuals from Federal Custody to Avoid Deadly Outbreak of COVID-19
In a letter from 405 former DOJ leaders, attorneys, and federal judges , including 35 U.S. Attorneys, these criminal justice leaders urge President Trump to take rapid action to release medically at risk individuals from federal custody to protect them and our communities from the catastrophic spread of COVID-19 in federal facilities. The letter calls on President Trump to use his executive power to commute sentences for vulnerable individuals, urge policies to limit the number of new people entering federal custody, and secure emergency funding for reentry services and support of state and local efforts to similarly address the spread of COVID-19 in custodial settings. For more, read the release and letter.
The signatories to the letter, like other criminal justice leaders in recent weeks, came together in response to the current public health emergency. These former prosecutors, attorneys, judges and law enforcement leaders stressed the immense vulnerability of incarcerated and detained populations to the deadly COVID-19 virus due to dense living conditions, poor access to quality healthcare, and the increasing elderly population behind bars.
In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody – as well as the many individuals who work in these facilities and return to their community at the end of each shift – by:
- Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
- Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
- Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
- Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
- Supporting emergency funding for prevention, treatment, reentry support, and incentivising state and local governments to address the public health concerns in their own jails and prisons.
“We, as former United States Attorneys, federal judges, Assistant United States Attorneys, and DOJ lawyers and leaders, understand the obligation to protect the safety and wellbeing of everyone in our community….To prevent the rapid spread of COVID-19 in facilities under your federal control, we urge you to start commuting sentences immediately.”
NSWCCL recently issued statements regarding COVID-19 concerns and the NSW prison/detention population -
March 27, 2020
NSW Attorney General, Mark Speakman SC
Anthony Roberts MP, Minister for Counter Terrorism and Corrections
Peter Severin, Commissioner, Corrective Services NSW
Gary Forrest CEO Justice Health
The NSWCCL has written to the NSW Attorney General Mark Speakman SC to acknowledge the strong leadership shown by taking swift and decisive action to amend the Crimes (Administration of Sentences) Act 1999 to create a power for early release to conditional parole in some circumstances. If this power is exercised to substantially reduce the number of people held in detention in NSW, this will be a significant step towards slowing the spread of COVID-19 and saving lives.
We urge the Attorney General to also consider relieving the strain on prisons and consequential health risks caused by the burden of overcrowding by amending the Bail Act 2013. In 2013 the Audit Office of NSW identified that 33% of the NSW prison population were on remand. This proportion of the prison population can only be reduced through release by police or courts under the Bail Act.
The current bail framework can be applied to reduce the numbers. In particular the court can take into account the delays which will be experienced in finalising cases as a result of the impact of the pandemic and also vulnerabilities of the accused, for example their age, pre-existing conditions or if they are an Aboriginal or Torres Strait Islander person.
However, the Bail Act does not currently provide for the impact of the spread of the virus within the prison system on the community or other people detained or working or attending correctional or detention centres. An express provision in the Bail Act which provides that the court must take into account the risks posed by COVID-19 to inmates, correctional staff and other gaol workers, their families and the community more broadly, would send a clear message to police and the courts that Parliament acknowledges the serious and fatal risks posed by a spread of this virus.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Rebecca McMahon & Eugene Schofield-Georgeson
Convenors, Criminal Justice Action Group
March 24, 2020
Reducing the risk of COVID-19: reducing the number of people in custody
The risk of transmission of COVID-19 in correctional centres and youth detention centres demands urgent action to reduce the number of people in those centres.
The NSWCCL strongly supports the ‘Open letter to Australian governments on COVID-19 and the criminal justice system’ https://www.abc.net.au/news/2020-03-20/open-letter-to-australian-governments-on-covid-19-and-the-crimi/12076342.
Overcrowding of gaols is a well-known condition which renders the prison population more vulnerable to the spread of infectious diseases. Many people in custody present with pre-existing and chronic health conditions which may increase the risk to their health if infected with COVID-19.
We are deeply concerned that failing to significantly reduce prison numbers will lead to a rapid spread of the infection which would unacceptably compromise the health and safety of inmates, young people and the families and communities to whom they are released. This is particularly concerning for Aboriginal and Torres Strait Islander people who are overrepresented in the criminal justice system and who suffer poorer health outcomes. We are also concerned for the health and safety of corrections and justice health staff, lawyers, cleaners other gaol workers and the families and communities they go home to.
The risk of infection will inevitably be exacerbated by the significant delays in finalising cases which will result from important measures being put in place by the courts to limit face-to-face contact of court users, such as the suspension of jury trials. On 23 March 2020 a restriction was placed on new criminal cases commencing in the NSW District Court (other than sentences and appeals) and directed that trials currently listed be vacated and be re-listed after October 2020 (with the exception of Judge alone trials and current trials). The Supreme Court announced that from Tuesday, 24 March 2020 ‘there shall be no personal appearances in any matters save in exceptional circumstances’
Reducing prison numbers can be done by:
- Urgently considering legislation to enable early release of prisoners who are not considered high risk or who are soon to be released as has been done in some other countries
- Amending the Bail Act and the Crimes (Sentencing Procedure) Act to require courts (and police in relation to bail) to take into account the potential impact of COVID-19 upon the accused and the community.
- Police and the courts taking into account the impact of COVID-19 upon the accused in the context of the current bail framework, including the accused’s potential risk of exposure, the length of time in custody (including the impact of the delays), the vulnerability of the person and the likelihood of a custodial penalty (which may more appropriately be a community based option if the person is vulnerable to infection by virtue of their incarceration or the person has a vulnerability which increases the risk to their health).
We urge that courts refrain from imposing sentences of full-time custody unless assurances are provided by corrective services that:
- the offender will not be forced to share cells or spaces which are inconsistent with the government guidelines in relation to distancing; and
- that offenders will not be exposed to persons who corrective services are aware may be infected or at risk of carrying the virus.
Transparency and Accountability
The information currently available on NSW Corrective Services and NSW Justice Health websites is inadequate. Inmates, young people in detention, their families, the public, the legal profession and the courts are entitled to know essential information and policies including:
- In what circumstances are inmates and young people being tested for COVID-19?
- In what circumstances are staff being tested for COVID-19?
- What arrangements are being made in relation to vulnerable members of the prison population: the elderly, those with pre-existing conditions, Aboriginal and Torres Strait Islander people?
- What are the arrangements for isolating any inmates who test positive for COVID-19, including the length of time they are to be isolated and in what conditions?
- How are accused persons who are arriving from overseas (such as those who may have been arrested for importing drugs) being isolated?
- the impact on inmates who share a wing, pod or gaol with an inmate who tests positive for COVID-19 and what arrangements or changes will occur to the conditions of their incarceration?
- the number of beds at Long Bay hospital that are available for treating any inmate or young person testing positive who requires hospital care;
- what alternative arrangements would be available if Long Bay hospital reached capacity?
- the arrangements, if any, for any inmates who are released in relation to testing and, if positive, whether inmates are provided transport and transmission to appropriate health services?
- the availability or cancellation of rehabilitation programs as a result of the risk posed by COVID-19.
We urge NSW Corrective Services and NSW Justice Health to publish this information on their websites to ensure accuracy.
As at 22 March 2020, NSW Corrective Services’ website indicated that “We have no confirmed cases of the virus within any of our correctional centres”. On 20 March 2020, The Sydney Morning Herald reported “two staff members at a high-security mental health facility in Sydney's south have been diagnosed with COVID-19 and dozens of staff and patients have been placed into isolation”. We urge NSW Corrective Services and NSW Justice Health to publish accurate information on their websites. It is understood that the forensic hospital is under the jurisdiction of NSW Justice Health, however, sections 55 and 56 of the Mental Health (Forensic Provisions) Act provide for transfer of persons between the hospital and correctional centres. For this reason, we urge disclosure on the NSW Corrective Services website. It should also be made clear whether there has been any potential transmission by Justice Health staff spending time in either the hospital or a correctional centre or whether any forensic patients have been transferred to correctional centres within the relevant time period.
Unprecedented times require the courage to make decisions which are consistent with evidence and the wellbeing of the whole community. We call on the government to urgently reduce the number of people incarcerated to lessen public health risks. We call on NSW Corrective Services and NSW Justice Health to provide clear and detailed information to the public.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Rebecca McMahon & Eugene Schofield-Georgeson
Convenors, Criminal Justice Action Group
11 March 2020
NSW Council for Civil Liberties considers the Minister for Police and Community Services, David Elliott, should stand down while a NSW police investigation into whether he has committed a criminal offence is ongoing.
Ministers have a responsibility to maintain the public trust that has been placed in them by performing their duties with honesty and integrity, in compliance with the rule of law.
It is untenable for the Minister for Police, with responsibility for the conduct of the NSW Police Force, to maintain public confidence in the NSW Police Force while he himself is under investigation for a serious offence, in this case an offence which carries a maximum penalty of 14 years imprisonment.
While Mr Elliott is entitled to the presumption of innocence and says that he acted in good faith and fired a semi-automatic weapon and pistol "under the strict supervision of the range master", that does not properly address the question of whether the public can have confidence in the integrity of the police investigation while Mr Elliott remains Minister for Police.
NSWCCL contact: Stephen Blanks, Treasurer - email@example.com
NSWCCL condemns the premature closure of the inquiry into potentially illegal strip searches conducted on minors by police in NSW. The Guardian has revealed that the Law Enforcement Conduct Commission (LECC) confirmed it will no longer hold further hearings as part of the inquiry, which last year uncovered evidence of the widespread misuse of strip search powers by police in NSW.
The LECC had been due to hold more public hearings in either late January or February into the psychological impacts of strip searching on minors, but in a brief statement a spokeswoman for the LECC said it now had “no intention to call further evidence at this stage”.
The decision to cut the inquiry short comes just a month after the NSW government announced it would not renew the term of its chief commissioner, Michael Adams QC, which prompted accusations his removal was a “cynical” attempt to cut the inquiry short.
Held in October and December, the public hearings revealed a disturbing pattern of police misusing strip search powers on minors, as well as evidence that many police do not understand the laws governing strip searches. Police data referenced at the inquiry shows that routinely, strip searches are not being used only in 'serious and urgent circumstances', indicating widespread contravention of the law.
Evidence tabled shows that when 30 teenagers were strip searched at an underage Sydney music festival in February 2019, just five had an appropriate adult present. Presence of a parent/guardian is mandatory under the Law Enforcement (Powers and Responsibilities) Act for anyone aged between 10 and 18.
In one case a 16-year-old girl was fearful and in tears after she was forced to strip naked and squat in front of a police officer who then “looked underneath” her at the Splendour in the Grass festival in 2018.
NSW Council for Civil Liberties Vice-President, Dr Eugene Schofield-Georgeson states, "This inquiry was key to uncovering processes and investigating questionable practices. Reform is needed, both internal police practice, as well as legislative reform. Clarification of strip search powers in both the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and in regulations, was recommended by UNSW law academics Dr Michael Grewcock and Dr Vicki Sentas in Rethinking Strip Searches by NSW Police. It's important people, particularly minors, are aware of their rights when asked by police to submit to a strip search."
This issue is "about changing the conversation about policing in NSW," explains Redfern Legal Centre head of police accountability Samantha Lee. "It's a conversation that talks about minimising harms, securing dignity and still keeping the community safe."
Strip search practices raise major issues of police accountability. Strip searches are on the rise in New South Wales, with searches increasing by 46.8 percent over four years and on average, in 64 percent of cases, nothing unlawful is being found. Find out more in Rethinking Strip Searches by NSW Police, commissioned by Redfern Legal Centre and published by UNSW Law.
- NSWCCL President, Nick Cowdery AO QC
NSWCCL, Redfern Legal Centre and 2SER are collaborating on Strip searches and the law: Project Podcast. The episodes will cover issues such as what to do if you, your family or friends are approached by police and or drug detection dogs, and what powers police have to search, seize, detain and arrest.
Will you help us make Project Podcast happen? We are looking for community support to produce the episodes. For an organisation like ours that relies on members and supporters to further our work, every dollar counts.