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
It is disappointing to see the Commissioner of Police's comments in the Sydney Morning Herald this morning defending warrantless access to databases containing personal information. The police are opportunistically taking advantage of the proliferation of electronic databases which do not have strong privacy policies to protect members of the community against inappropriate release of their personal information. In the absence of strong data protection laws and personal privacy protection, the only protection the public can get is through privacy policies which require law enforcement agencies to obtain warrants from an independent judge or magistrate before personal information is released.
NSW and federal law enforcement agencies have been given the power to access the travel history and home addresses of hundreds of thousands of commuters using the new Opal card.
NSWCCL President Stephen Blanks comments
Source: Sydney Morning Herald, 15/07/2014
Civil Liberties Councils across Australia urge the Government- and failing that- the Australian
Parliament to ensure that the foreshadowed national security legislation is subject to proper scrutiny
and not rushed through parliament next week-as some media suggest is the Government’s intention.
The, as yet unseen, legislation will implement most of the 22 recommendations from chapter 4 of
the Parliamentary Joint Committee on Intelligence and Surveillance (PJCIS) report.
This is important legislation with significant implications for national security and for the workings of
our democracy. It is of fundamental importance that we get the balance right in this area.
Members of Parliament and the Australian public must have the time to consider and take advice
on these national security proposals before they are enacted into law.
Parliament must be certain the new laws are necessary, that they include strong protections for privacy and effective independent oversight of the use of these new powers by the intelligence agencies.
The Government should abide by the recommendations of the PJCIS and:
- release the proposals as an exposure draft bill for public consultation
- refer the draft legislation for review by an appropriate parliamentary committee (the CCLs consider the PJCIS most appropriate)
Following several weeks of ill-informed media agitation led by the DT criticising the release on bail of several persons charged with serious crimes, Premier Baird has set up a hasty review of the new bail law which has been in operation for only one month.
This is a distressing development. There is no reason for a review at this time. The bail law reforms implemented in 2013 by the current Government were moderate and ‘supported by the overwhelming majority of submissions to the Law Reform Commission’s review of bail, including the Office of the Director of Public Prosecutions, Police and Legal Aid NSW." (Premier Baird launching the Hatzistergos review SMH 27/6/1).
Nothing extraordinary has happened. Numbers of legal experts have noted that it would have been possible for the persons generating the controversy to have been released under the old bail laws.
The trend data for any sensible review is not available and not much will be by the end of July when Mr Hatzistergos has to provide an interim report.
On the broader scale this is another depressing manifestation of the destructive dynamic of the law and order auction syndrome that bedevils state politics.Read more
The operation of ID scanners to collect and store the personal information of all patron's will begin this week at a number of 'high-risk' venues in Kings Cross. This data collection scheme raises concerns over privacy and security, such as the possibility for unauthorised access or the inappropriate usage of individuals' personal data. NSWCCL President Stephen Blanks has commented recently in the media on this issue, visit the links below for coverage.
The new Attorney General Brad Hazzard has disappointed many with his unexplained deferral of the NSW Government’s response to the important and –in the current context- highly significant report of the standing committee on law and justice into NSW racial vilification laws. This was given to the Government in December 2013 and its response has been awaited for some time.
The committee had been asked by the Government to inquire into whether Section 20D of the NSW Anti-Discrimination Act which created the offence of serious racial vilification was effective and if it established a realistic test, in line with community expectations, for the offence of racial vilification. It was also asked to advise on any improvements to Section 20D ‘having regard to the continued importance of freedom of speech”.
There was no radical shift proposed by the report. The committee unanimously made a number of modest recommendations for improvements mainly focussed on removing ‘procedural impediments’ to successful criminal prosecution for serious racial vilification. The absence of any successful criminal prosecutions under the Act had been cited by the then Premier Barrie O’Farrell as the main driver for the inquiry.Read more
Legislation amending police powers and responsibilities and related citizens' protections was introduced into the nsw parliament in late may through the Law Enforcement (Powers and Responsibilities) Amendment Bill 2014. Many of the changes were about clarification of the law or improvements in operational efficiency for police with no negative impact on citizens' rights and protections. NSWCCL supported these. However, some of the changes were less justifiable and had more worrying implications.
Our most urgent concern was in relation to the weakening of the current requirement that police must identify themselves when exercising their powers (eg arrest or move on) otherwise their exercise of the power is unlawful. The bill seeks to repeal the consequences provision. Failure to identify oneself when making an arrest or exercising other law enforcement powers will not render the exercise of the power unlawful. This is a dangerous amendment as it removes what has been a powerful incentive for police to abide by this important safeguard and accountability requirement that they give their name and place of work when exercising their considerable powers over community members.Read more
NSWCCL has strong concerns about the recent amalgamation of the attorney generals and justice portfolio into a single cluster with the police and emergency services portfolio. Initially this arrangement specified the police minster as the senior coordinating minister above the attorney general and minister for justice. The cluster and the department were both named 'Police and Justice'. This appeared to subordinate the attorney general and senior law officer to the police minister and will erode confidence in the rule of law in nsw.
The unexpected resignation of the police minister led to the ministerial relationship being reversed so that the current attorney and minister for justice, Brad Hazzard, is now the senior minister.
This is a welcome improvement of an embarrassing arrangement for the state's first law officer but does not address the core problem with these new arrangements.
The amalgamation of the attorney general, justice and police ministers, functions and agencies into a single cluster and a single department is totally inappropriate - regardless of nomenclature and relative status of ministers. In a democracy robust debate between these portfolios on matters of policy is to be expected. The new administrative arrangements are likely to have a constraining impact on such debate coming to public awareness.
The Premier needs to restore separate administrative arrangements to these important ministries immediately.Read more
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.'Read more