Something rotten in NSW

There is something rotten in the state of NSW. The strength and speed of the changes to basic civil liberties has picked up pace again with yet more changes afoot as Premier Mike Baird rides roughshod over long held legal principles and basic human rights.

Clearly NSW legislators have learned from the experiences of other states as community campaigns have galvanized opposition to draconian laws. Victoria pushed back effectively on the summary offences “move on laws”, with the Andrews government repealing these laws as their first act of government. In Tasmania they were amended after vocal opposition and are currently being challenged in the High Court, and in WA they are still languishing on the list of legislation yet to be brought forward for debate.

But in NSW the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 was hustled through both houses of Parliament in less than a week – an extraordinary effort. Community advocates had barely managed their first phone link up to discuss the changes when they went through one house of parliament. And despite some grandstanding Fred Nile and the Shooters and Fishers clearly secured outcomes for their own benefit in exchange for support of the bills – now passed through both houses of parliament and awaiting proclamation.

And now we are seeing the introduction of another set of laws with genuinely astounding reach.

The Serious Crime Prevention orders, and related proposed legislation, allows senior police officers – without permission from a court – to issue “public safety orders” banning individuals who police claim are a “risk to public safety” from attending specified public places for 72 hours.

Furthermore, if a serious crime is suspected to be about to take place people can be prevented from using phones and internet – for up to five years. This is an extraordinary, and Orwellian attack on basic liberties with no onus of proof – only suspicion of a crime yet to be committed.

And as the NSW bar association points out, there is no requirement of a conviction. These orders could apply to be people with no convictions, or those who unknowingly “facilitated” a crime. A person may be found to have engaged in a serious criminal offence even if the person was charged and acquitted of that offence.

This has been discussed in the Sydney Morning Herald and several blog sites (props to Sydney criminal lawyers for consistently useful blogs on current issues btw), including a good round up on Heaps Gay with an associated petition, but there has not been the level of outcry that should be expected in response.

The push back needs to be HUGE.

But also tempered in reality. What has been very problematic for our movement/s is the significant amount of misinformation that has circulated due to the hysterical reporting of the last set of legislation that was introduced.

Nonviolent protestors are currently NOT going to go to jail as a result of recent legislation. It is incredibly rare to see a maximum penalty applied, and oftentimes it will be at the much lower end of the scale, particularly for first offences. People who have the new charges of “aggravated trespass” applied to them are simply not going to get custodial sentences unless our current reality dramatically shifts. Dedicated activists who have numerous offences protecting forests and climate have not received jail time despite many convictions.

Yes, we need to keep pushing back, and YES, we need to hold police accountable, but we absolutely must not let this stop us from participating in peaceful protest. We need to show these laws to be as ridiculous as they are, and meticulously document their misuse (The discretion allowed in the move on laws could actually be the most seriously abused aspect), but not allow people to be scared away from participation in powerful nonviolent protest by buying into unrealistic rhetoric about $5000 in fines and jail terms.

NSW Bar Submission into Serious Crime Prevention Orders – April 2016

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