NSW Government’s Attack on Civil Liberties

The New South Wales Government has attracted widespread criticism from civil liberties groups, after passing new ‘anti-protest’ legislation in parliament this week. The new laws, passed on Tuesday, will see increased penalties for protesters at mining and coal-seam gas sites, and further discretion for police to issue ‘move on’ orders to protest groups.

Since taking office in 2011, the current government has overseen an unprecedented attack on civil liberties across the state – including dismantling the right to silence and freedom of association. While the anti-protest laws are their most recent attack, it’s worth looking back and reflecting on some of the safeguards and freedoms affected in the past five years.

Here’s a thumbnail sketch of just a few of the measures:

1. Police told to “shoot first, ask questions later”

Last year, it was announced that the NSW police would adopted a “shoot first” policy in response to potential domestic terror threats.

The policy gives police the green light to shoot people they feel may be armed terrorism suspects on sight.

Critics have pointed to the dangers inherent in this approach, asking questions like: how can police immediately know someone is a ‘terrorist’ rather than mentally ill? And how might this endanger innocent lives?

Critics point to several examples of the potential danger, including an incident in 2005 where the London Metropolitan police, operating under the same policy, killed an unarmed Brazilian man on the subway, after wrongly suspecting him of terrorist involvement.

Many believe that a proper assessment should be made of a situation, rather than ‘shooting first and asking questions later’.

2. Presumption of innocence reversed

In September 2014, the NSW Parliament amended the new Bail Act to introduce ‘show cause’ provisions – so that defendants now need to prove they should be released on bail for over 900 offences and situations, even if they do not pose an unacceptable risk to the community, and the evidence against them is not strong.

Since the changes, the state’s prison population has expanded to a record high of 12,121 prisoners, wasting millions of taxpayer dollars imprisoning people who are awaiting trial – many of whom are innocent.

The presumption of innocence has also been reversed for a number of offences, and in a range of Commissions and Tribunals.

3. Police no longer required to give name and place of duty

Since 2002, police have been required to provide their name and place of duty when exercising certain powers, such as arrest and search.

This changed in 2014, when the Government amended the Law Enforcement (Powers and Responsibilities) Act 2002.

Under the changes, police are still required to provide their name and place of duty, however, their refusal to do so can no longer be used in court to find their use of power invalid.

There are concerns that this undermines police transparency and accountability.

4. Indefinite Extension of Prison Sentences

In 2013, New South Wales became the first Australian jurisdiction to allow the indefinite extension of sentences for inmates deemed to be “high-risk violent offenders”.

Under the Crimes (Serious Sex Offenders) Amendment Act 2013, inmates who are not seen to be sufficiently “rehabilitated” may have their sentences extended, regardless of the initial crime.

While the Government has argued this scheme is necessary to protect people from potentially violent re-offenders, introducing penalties for something someone might do undermines the notion that you should only be punished for what you’ve done wrong, a fundamental tenet of our criminal justice system.

It also creates an opportunity for prison officer corruption.

5. The Right to Silence removed

In 2013, the caution read out by police when a suspect is arrested for a serious offence (which attracts at least 5 years of imprisonment) was altered to remove the right to silence if a lawyer is present.

Where previously, anyone arrested was told: “You are not obliged to say or do anything unless you wish to do so”, police now tell arrested person that: “It may harm your defence if you fail to mention something now that you later rely on at trial.”

The move has made police very happy by ensuring that lawyers stay out of police stations and are therefore unable to be present to protect their clients’ rights.

It has increased the power disparity between police and those under arrest.

6. Police allowed to perform warrantless searches

In November 2013, police were given new powers to to perform warrantless searches in the homes of people they suspect to be in breach of a Firearms Prohibition Order (FPO).

The powers extend to any premise or vehicle that the person occupies, controls or manages, and were ostensibly introduced help police find firearms and related items, and allow police to conduct an FPO search at any time, as long as the search is ‘reasonably required’ to determine whether the person has committed an offence by using a firearm, or by acquiring or possessing a firearm, a firearm part or ammunition.

Critics believe they are being used to harass members of the public without any evidence they are doing anything wrong.

7. Guilt by association

Under the provisions introduced with the Crimes Amendment (Consorting and Organised Crime) Bill 2012, it is now an indictable offence to habitually consort with convicted offenders after receiving a warning from police.

Although this bill was introduced to give police the power to break up organised crime, it has been criticised for criminalising association, rather than criminal activity itself.

Anyone can be warned or charged with consorting, which can even include communicating by Facebook or text.

8. Removal of spousal privilege

The Crimes Legislation Amendment Bill 2012 removed the centuries-old principle of ‘spousal privilege,’ that had protected people from prosecution for failing to dob in their spouses.

In many places ‘spousal privilege’ exists in recognition of the trust and confidence shared between partners, however the change has made it a blanket rule that, regardless of the circumstances, partners can be charged for not providing evidence against their partners to the police.

These are just a few of the hundreds of laws that curtail privileges and safeguards in NSW which – together with a raft of deeply concerning Federal laws – have led to renewed calls for a Bill of Rights.