Mr DAVID SHOEBRIDGE
[9.16 p.m.]: On behalf of The Greens, I oppose the Crimes Amendment (Consorting and Organised Crime) Bill 2012.
It is notable, but not unusual, that when it comes to questions of civil liberties The Greens are the only political party that opposes the use of an expansive set of police powers and an expansive set of laws that greatly infringe upon civil liberties in New South Wales. I make that observation in the light of a number of members having referred to the very sorry and sad history of consorting laws in this State. Their sad history derives from providing excessive discretion to the police and becoming a part of corruption-inducing activities within the New South Wales Police Force. On any view of the situation, repeating past mistakes and granting a further set of broad discretionary powers to the NSW Police Force is a backward step for any political party interested in maintaining the integrity of the police in New South Wales.
The object of the bill is to amend the Crimes Act 1900 to, among other things, “create a new offence of firing at a dwelling-house, with a higher penalty than the existing general offence for firing at a dwelling-house, where the offence occurs in the course of an organised criminal activity”. That object constitutes a marginal change to the criminal law in New South Wales. It is remarkable that any Government would suggest that by changing the maximum penalty for an offence of shooting at a house from 14 years to 16 years it will have even the slightest impact upon criminal activity in this State. The Government suggests that a criminal will think, “I won’t shoot at this house because yesterday I would have got 14 years, but today I will get 16 years”, and that that will change the activity of organised criminals in New South Wales.
It defies logic that that will have any meaningful impact upon criminal activity or drive-by shootings in New South Wales.
We all agree that one drive-by shooting is too many, but the rhetoric from the Labor Opposition in particular on the incidence of drive-by shooting in Sydney over the past 12 months has been appalling. The statistics show that drive-by shootings reached a peak 3½ years ago under Labor with more than 100 in any given year. Whilst there are a disturbing number of drive-by shootings—some 60-odd drive-by shootings in the last 12 months—they are nowhere near the peak they were under Labor’s administration, yet Labor has run a fear campaign in Sydney to suggest that there is an upward spiral of crime in New South Wales. There is not: almost all of the criminal statistics, in western Sydney, in south western Sydney, across New South Wales, show falling levels of crime. You would not know it from the rhetoric of the Leader of the Opposition and the shadow police Minister.
Crime in New South Wales has been falling for more than a decade—consistently falling. Those statistics are inconvenient for those scaremongering to increase police powers and introduce more draconian criminal laws, but the statistics tell the truth—not the Opposition Leader here in New South Wales.
The second thing that this bill does is it changes the mental element for the offence of participating in a criminal group so it is no longer necessary for the prosecution to prove the defendant knowingly participated in a criminal group and knowingly or recklessly contributed to the occurrence of a criminal activity. Currently a person who is a member of a criminal group and knows or is reckless as to whether a group is a criminal group is guilty of an offence. So it requires actual intent or recklessness by a person to prove the criminal offence at the moment.
But the new standard will be that the person knew or ought to have known that such a group was a criminal group. That means a person could genuinely not be aware that a group was a criminal organisation, could go before the court charged with this offence, prove to the judge absolutely that they knew that they had no knowledge that it was a criminal offence. Yet a judge could be entirely convinced and say, “I accept Mr Phelps that you had no knowledge, you genuinely did not know that the people you were engaging with were a criminal organisation. I accept that you genuinely did not know that, but you should have, and the fact that you should have means that you can now be convicted of a criminal offence… Even though you had no criminal intent at all for what you were doing you can be found guilty of a criminal offence.”
Criminalising inadvertence or naivety will not make us safer here in New South Wales and it is a major step backwards to remove mens rea from a serious criminal offence here in New South Wales.
We have the so-called champion of the conservatives here in New South Wales, the Government Whip, who likes to stand up for, so he says, tradition and the common sense of our forefathers. In the criminal law it is a fundamental principle here in Australia, as we have inherited from the English tradition, that mens rea, some sort of mental element, is necessary to prove a criminal offence. This bill betrays that tradition and removes mens rea from the offence.
Perhaps the most substantial change to the law is the change to the law on consorting. The offence of consorting has been revived from consorting laws that date back to the 1920s that were aimed at a spate of razor gang activity in Paddington. The debate in this House from September 1929 could read almost word for word for the current rhetoric that has been put before the House in bringing in this legislation again.
For the offence to be proven it must be shown that the person habitually consorted with convicted offenders. That is defined to include consorting with at least two separate offenders together or separately on at least two occasions.
The police can give anyone an official warning not to contact a person who has previously been found guilty of an indictable offence, a so-called convicted offender under this bill. The person given the warning may have been involved in no criminal activity at all. There is no suggestion that the person being given the warning had any criminal knowledge, any criminal history—just an ordinary punter. The person given the warning may never have committed an offence in their life. If that person then contacts the convicted offender after being given a warning in any way, even by text message, they are guilty of an offence with a maximum penalty of 150 penalty units or three years in prison. They have not committed any criminal offence other than contact someone who was previously in jail or two people who were previously in jail.
Of course, a convicted offender means any person who has at any time been convicted of an indictable offence. Indictable offences are an extraordinarily broad range of offences here in New South Wales, from very serious offences such as murder and manslaughter down to much lesser offences such as stealing property worth over $5,000 and the like. The courts have held that consorting does not require any mixing with criminals for a criminal purpose or any mixing with criminals for even a vaguely nefarious purpose. The case law is very clear on that.
I am grateful to Professor Alex Steel for this history in his work Consorting in New South Wales: Substantive Offence or Police Power? Gabriel v Lenthall, which is a case dating back from the 1930s, is the case that set the tone for consorting. The defendant argued that driving a person to court to face the magistrate could not amount to consorting. But Justice Richards disagreed stated that:
The offence is not being with thieves on occasions when it might be suspected that they are about their nefarious occupation, but simply habitually consorting with them; it is not companionship in thieving but with thieves.
The offence is not being with thieves on occasions when it might be suspected that they are about their nefarious occupation, but simply habitually consorting with them; it is not companionship in thieving but with thieves.
So these are laws directed at who you mix with, not the purpose for which you mix and that is very clear. This was clarified by the High Court in a case of Johanson v Dixon. In that case Justice Murphy tried to change the course of law and tried to say well surely consorting should mean consorting for some sort of criminal purpose. It should have some kind of objective intent to do some wrong. But he was unsuccessful in doing that. Justice Mason, who wrote the majority judgement in that case, put the matter beyond doubt. He said:
It is not for the Crown to prove that the defendant has consorted for an unlawful or criminal purpose. The words creating the offence make no mention of purpose … Nor does the word ‘consorts’ necessarily imply that the association is one which has or needs to have a particular purpose.
One this law is passed, citizens of New South Wales who may have family members who have been to prison under an indictable offence, who may have friends, who have been to prison subject to an indictable offence, who may have partners who have been to prison because of an habitual offence, will find themselves, very potentially, subject to police discretion, the subject of warnings by police to say cease mixing with your family members, cease mixing with your partner, cease mixing with your friends. And if they disobey that warning, even if they then send text messages to those persons saying, “I’ve been told by the police I can no longer contact you or mix with you”, can then be subject to a criminal charge and face up to three years in prison.
It is not for the Crown to prove that the defendant has consorted for an unlawful or criminal purpose. The words creating the offence make no mention of purpose … Nor does the word ‘consorts’ necessarily imply that the association is one which has or needs to have a particular purpose.
One this law is passed, citizens of New South Wales who may have family members who have been to prison under an indictable offence, who may have friends, who have been to prison subject to an indictable offence, who may have partners who have been to prison because of an habitual offence, will find themselves, very potentially, subject to police discretion, the subject of warnings by police to say cease mixing with your family members, cease mixing with your partner, cease mixing with your friends. And if they disobey that warning, even if they then send text messages to those persons saying, “I’ve been told by the police I can no longer contact you or mix with you”, can then be subject to a criminal charge and face up to three years in prison.
The NSW Young Lawyers make some very fine observations in relation to this. The President of NSW Young Lawyers, Ms Heidi Fairhall, says this:
All that is required under the proposed legislation is that a person be officially warned by police that the people they are interacting with have a conviction. If an association with those individuals continues, that person may be committing an offence. For example, under the proposed legislation if you play in a football team with a couple of mates who got into a fight and were convicted of assault, then the police can officially warn you of consorting.
All that is required under the proposed legislation is that a person be officially warned by police that the people they are interacting with have a conviction. If an association with those individuals continues, that person may be committing an offence. For example, under the proposed legislation if you play in a football team with a couple of mates who got into a fight and were convicted of assault, then the police can officially warn you of consorting.
If you then go on to consort—some people would say play football—with these team mates you would be committing an offence and risk gaol for up to three years.
Ms Fairhall said:
The scope of the defences for consorting with family and work colleagues is also too narrow and inadequate.
The scope of the defences for consorting with family and work colleagues is also too narrow and inadequate.
She further said:
Indigenous people who are disproportionately more likely to have convictions may be prevented from interacting with their extended kin.
Indigenous people who are disproportionately more likely to have convictions may be prevented from interacting with their extended kin.
Surely it should trouble this House that this bill will give the police such a broad discretionary power to constrain the capacity of Aboriginal citizens in this State from meeting with their extended family. Aboriginal citizens, on the misfiring of our criminal justice system over the past two centuries, face enormously disproportionate imprisonment rates, indictable offences and charges. Almost without exception the extended family members of most Aboriginal citizens in New South Wales have been the subject of indictable offences.
To that extent, on any view this law will have a grossly disproportionate impact on Aboriginal citizens in New South Wales. As Ms Fairhall said:
It is essentially left up to police to decide without guidance or restriction whether you ought to associate with people you know.
It is essentially left up to police to decide without guidance or restriction whether you ought to associate with people you know.
The NSW Law Society, hardly the most radical institution in New South Wales, said this via its Criminal Law Committee:
The Committee is particularly concerned about the proposed amendments to the offence of consorting. The proposed consorting offence makes it a crime for otherwise innocent people to associate with people who have been convicted of an indictable offence and imposes a sentence of up to three years imprisonment if they do so. The Committee agrees with Associate Professor Steel, that “In a modern-day society there should not be an offence of speaking to anybody unless the nature of a conversation is a conspiracy.”
In other words, as the Law Society says, this Parliament should not, although tonight it will, criminalise the simple fact of speaking or texting to people who have previously been convicted of an indictable offence. This Parliament should address laws to genuine criminal activity. It should be directing police resources and powers to genuine criminal activity, not making new laws and criminalising activity that is otherwise innocent and accepted in a free society.
In 1929 the Labor Party in this place had a backbone and stood up against this kind of law. When responding to these proposed changes John Lang said:
Glancing through the bill it seems to me that it might be possible for some grave injustice to be done under it to persons who are perfectly innocent. Under the bill as it now stands it appears to me that if a woman was frequently seen speaking to women of bad character, she might be committed to prison or, at the discretion of the magistrate, she might be taken in hand to be reformed. If a decent woman can be hauled up because she’s found in conversation with another woman who has been found to be guilty of certain practices and can be sent to reformatory or jail although she may have been talking to the other only for the purposes of reforming her, the position is intolerable. I am merely offering a word of caution against going too rapidly and making criminals of persons who, though they mix with these particular people, are with them not for a bad purpose but probably for a very good one!
Glancing through the bill it seems to me that it might be possible for some grave injustice to be done under it to persons who are perfectly innocent. Under the bill as it now stands it appears to me that if a woman was frequently seen speaking to women of bad character, she might be committed to prison or, at the discretion of the magistrate, she might be taken in hand to be reformed. If a decent woman can be hauled up because she’s found in conversation with another woman who has been found to be guilty of certain practices and can be sent to reformatory or jail although she may have been talking to the other only for the purposes of reforming her, the position is intolerable. I am merely offering a word of caution against going too rapidly and making criminals of persons who, though they mix with these particular people, are with them not for a bad purpose but probably for a very good one!
That rationale extends to the so-called defences found in this bill. Once a person who becomes the subject of a warning by the police and continues to mix with the person from whom they were warned off by the police they can run a defence in a very narrow set of circumstances. One defence is that the person was consorting with a family member: “Dad had an indictable offence and I was mixing with Dad and surely that is reasonable.” But that is not a defence of itself. The defendant must prove that the interactions with his or her father, uncle or aunt were reasonable. It is not simply a defence that the interactions were with a family member. As a defendant one has to prove to the court that those interactions were reasonable.
To show the absolute nonsense of this law, another defence is that the consorting occurred in lawful custody or in the course of complying with a court order. If someone is in jail and surrounded, as one tends to be in jail, by those found guilty of indictable offences, the defendant can argue, “I couldn’t do much about it, your Honour, I was in jail.” Thank you, Mr O’Farrell, for saving our civil liberties!
This bill goes too far. The Greens oppose it.
Amendments:
Mr DAVID SHOEBRIDGE [10.05 p.m.]: I move The Greens amendment No. 1 c2012-026 Crimes Amendment (Consorting and Organised Crime) Bill 2012
No. 1 Page 3, schedule 1 [4], lines 21-29. Omit all words on those lines. Insert instead:
Insert after section 93T (1):
Insert after section 93T (1):
This is an amendment to new section 93T, which currently allows for a finding of criminal activity where a person participates in a criminal group either knowing it is a criminal group or being reckless as to whether his or her participation in that group contributes to the occurrence of any criminal activity.
As the law is currently drafted, for a person to be found guilty of a criminal offence that carries a penalty of five years imprisonment the person either had to know they were engaged with a criminal group—and if they know they are engaging with a criminal group they obviously have mens rea and the criminal intent to engage with a criminal group—or the person needed to be reckless, which is a test well known to the criminal law, and requires a sense of culpability on the part of the person who is being reckless in engaging with a criminal group.
But because the police say it is difficult to get charges to stick by proving that the person knew or was reckless, and as a result of police pressure, the Government is seeking to change the test. A person can be found guilty and go to jail for up to five years if they knew or reasonably ought to have known that they were engaging in the activities of a criminal group.
The Greens note that that is the current law and there is no issue with it. It is the second element that is the problem. The Government’s amendments to the Crimes Act seek to get rid of the requirement of recklessness, which carries moral culpability with it, and replace it with proving that a person knew or ought reasonably to have known that his or her participation in that group contributed to the occurrence of any criminal activity. This is the removal of mens rea—the removal of any criminal knowledge or criminal intent on the part of a person.
A person can prove to a judge that they did not know that they were participating in a criminal group and the judge can say, “I have heard from you; I accept that you did not know. I accept you had no idea you were engaging in a criminal activity or with a criminal group. Nevertheless, you should have known that and a reasonable person would have. For that reason, even though you had no criminal intent, you will go to jail for up to five years.” The removal of mens rea is an extraordinary watering down of the protections of liberty in our criminal laws in New South Wales.
When making a law that provides for a five-year term of imprisonment for allegedly criminal behaviour, it needs to be made in the knowledge that those who will be found guilty under it have actually had some criminal intent, have known that what they were doing was wrong, or at least were recklessly indifferent about whether what they were doing was wrong.
For centuries our criminal justice system has been founded on proving not only that someone did something wrong but that they knew what they were doing was wrong, or at least were reckless in not caring whether what they were doing was wrong. This provision of the bill removes that history entirely; it trashes that tradition, it trashes its protection, and it trashes one of the golden threads, and it is for that reason that The Greens move this amend and oppose this aspect of the bill.
Mr DAVID SHOEBRIDGE [10.12 p.m.]: I move c2012-025 Crimes Amendment (Consorting and Organised Crime) Bill 2012 amendment:
No. 1 Page 6, schedule 1 [9], proposed section 93Y. Insert after line 8:
(g) consorting that occurs principally for the purpose of genuine advocacy, protest, dissent or industrial action.
(g) consorting that occurs principally for the purpose of genuine advocacy, protest, dissent or industrial action.
One of the aspects of the bill that is most troubling is its provision of a very limited set of defences for any person to make a case that they ought not to be convicted of a breach of this consorting law. The list of defences that can be made are if the person is consorting with family members, consorting in the course of lawful employment, consorting in training, consorting in the provision of a health service, consorting in the provision of legal advice, or consorting in prison or in the course of complying with a court order. The bill does not allow for organisations such as Justice Action and other prisoner advocacy groups and organisations that engage in activities of dissent here in New South Wales.
Perhaps the most extreme example would be that of Justice Action, an advocacy group actually run by ex-prisoners. This is an advocacy group run by people a great many of whom would fall within the category of a convicted offender for the purpose of these consorting laws. On any view, this is a group of people, all of whom are convicted offenders, who get together. If they are given a warning by police, they have no grounds on which to defend their continued operation as a prisoner advocacy group, or even as Justice Action. That is a group of people who almost by definition will be convicted offenders for the purpose of this bill. If the police, in their discretion, do not like what those people are doing and want to shut down the organisation, they could issue them with a warning, and if they meet again they will have engaged in a criminal offence. That is a remarkable state of affairs.
That is why The Greens move this amendment: to get rid of that outrageously broad police discretion. The Greens amendment would insert into this law some principles. The amendment provides that it would be a defence if you could reasonably prove that what a person was doing was consorting that occurs principally for the purpose of genuine advocacy, protest, dissent or industrial action. We need this safeguard in the law. If we do not, those kinds of organisations are subject to police discretion and no more. They have no defence. They should have a defence. This Parliament should recognise that. I commend the amendment.
Mr DAVID SHOEBRIDGE [10.18 p.m.]: I note the contributions of the Government and the Opposition on The Greens amendment. The Government effectively concedes that it wants the capacity to criminalise people who gather together for advocacy or dissent. It is for that very reason that The Greens are pressing this amendment and the defence it proposes. The contribution from the Opposition misunderstands the provisions of the bill to which The Greens amendment relates. This is not about section 93T; this about division 7, consorting, section 93X. It does not require some criminal organisation to be in place. The test is whether a person habitually consorts with convicted offenders. I said in my contribution to the second reading debate that the concept of consorting does not require any criminal intent.
It may be just driving someone to court or meeting up with them for a coffee. It does not require any criminal element or criminal activity at all. All that is required is just meeting with, texting or talking to someone who is a convicted offender.
The Opposition either wilfully or, perhaps even worse, unwittingly does not understand the nature of the amendment or the nature of the offence that it seeks to create through supporting this legislation. It is not about criminal activities. This is just about meeting with, talking to or texting someone who was convicted previously. When you do that with more than two people more than twice then the police, in their discretion, can issue a warning. Then if you do it again—and maybe you want to continue to meet with other advocates for prisoners’ rights and maybe the police and this Government do not want you to there would be no defence. A judge would only determine the sentence. There is no defence. The Greens are trying to insert a defence. The Government said that giving people like this a defence would make for uncertainty. It would not; it would make for actual liberty and civil liberties in New South Wales. I commend the amendment.
These amendments were supported only by the Greens and thus voted down.
The Bill and Second Reading Speeches are available on the Parliamentary Website here.
Hansard of the entire second reading debate in the Legislative Council is available here.
The Law Society Briefing on the subject is available here.
The NSW Young Lawyers Media Release on the subject is available here.
New ‘anti-bikie’ and criminal consorting laws introduced by the O’Farrell government are unlikely to have any meaningful impact on organised crime, and will instead misdirect police resources from real crimes, like murder and extortion, towards criminalising people who are simply meeting.These represent fundamental attacks on our civil liberties, with the potential to criminalise organisations like Lock the Gate and prisoner advocacy groups (e.g. Justice Action).
We have produced the following fact sheets on two key parts of the legislation to help people get their heads around the new laws and the effects they are going to have. Click on one of the thumbnails below to download one of the two fact sheets.
The Greens will continue to oppose ill-conceived and ineffective legislation that is introduced by a government which is addicted to the Law & Order Auction and desperate to create the impression that they are doing something.
We will also continue to highlight the unacceptable impacts these types of laws can have on our civil liberties, especially for those who are trying to start new lives after serving prison terms.
