The state’s chief law officer, attorney-general Mark Speakman, has been busy thinking of ways to strengthen and expand laws which criminalise citizens and empower police officers.
As a result, our state parliament recently passed what might be described as a “kill-all” piece of legislation that amends a total of 28 justice and community Acts.
Passed on 20 November 2019, the Justice Legislation Amendment Bill (No 2) 2019 (the No 2 Bill) follows on from its predecessor, which was passed in September. It makes amendments affecting everything from AVOs in NSW, to bail and housing laws, to rules relating to the use of drug detection dogs.
“These amendments will strengthen our community,” Mr Speakman said in his 20 November second reading speech on the legislation. “Many of the amendments in the bill are technical in nature and are an important step towards further strengthening our justice system.”
So, we thought we’d wade through some of these “technical” aspects of the amendment bill, to find out what new surprises the Berejiklian government has come up with in order to “close gaps in the law that have become apparent” of late.
Not a member of a criminal group? You’re still a criminal
The No 2 Bill inserts subsection 6 into section 93T of the Crimes Act, which is the section that makes participating in a criminal group an offence. The more engrossed your participation – or the nastier your actions – the stiffer the penalties that apply.
But, just to make clear, the new subsection states that to “avoid doubt, for the purposes of this section a person may participate in a criminal group whether or not the person is a member of the criminal group”.
So, in the eyes of the law, you’re a member of a criminal group regardless of whether you are a member of the group. Take that, citizens of NSW.
Changes are also being made to division 5A of the Crimes Act, which currently relates to the theft of motor vehicles and vessels. The offences contained within this division will also apply to trailers, which weren’t previously included in these larceny offences.
Speaking in the upper house on behalf of NSW public services minister Don Harwin, Liberal MLC Natalie Ward explained that the “extension of the offences to trailers, which are often of comparable value to vehicles, will ensure that police can take appropriate action” in respect to their theft.
Section 154F of the Crimes Act will see someone a person put away for up to 10 years for stealing a trailer. And under section 154G, anyone involved in an organised operation that covers up the fact that trailers are stolen, so as to pass them off as legit, can be put away for 14 years.
Section 154H will stipulate that along with vehicles, interfering with any “unique identifiers” of a trailer is punishable by 7 years imprisonment. And a person can go away for up to 5 years for either possessing a trailer, tampering with identifiers or using one without an attached identification plate.
Access all areas
At present, a person who willingly modifies data on a computer causing impairment to the device, or intentionally compromises communications to or from a computer is guilty of an offence that carries a 10 year penalty. And if they access or modify restricted data, they can be sent away for 2 years.
These offences are contained under part 6 of the Crimes Act. The No 2 Bill inserts some rather interesting amendments into this part of the legislation titled “Computer Offences”.
Under section 308B, the bill inserts subsection 2A, which provides that these access, modification and impairment offences don’t apply to an “authorised person” who is in lawful custody of a device.
And as newly inserted subsection 308B(7) notes, these authorised persons are law enforcement officers.
A law unto themselves
Section 308I of the Crimes Act currently stipulates that a person who intentionally causes unauthorised impairment to the “reliability, security or operation of any data held on a computer disk, credit card or other device used to store data” can be sent away for up to 2 years.
However, a new subsection 308B(4) sets out that these offences no longer apply to law enforcement officers who are in possession of these items for “certain law enforcement purposes”.
And new subsection 308B(5) requires that as soon as law enforcement officers have carried out any access, modification or impairment to a device, they should make a record of it in writing. However, this reporting ‘requirement’ is made futile by subsection 6, which states that the failure to comply doesn’t make the actions illegal.
Broadening drug dog operations
Commonly referred to as the LEPRA, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is a piece of state legislation that consolidates many of the police powers in our state. The No 2 Bill makes changes to this Act as well.
Section 148 of the LEPRA outlines the places where it is permissible for police to carry out drug dog operations. These include in and around licensed premises, at sporting events, concerts, dance parties and music festivals, as well as at entrances to public transport, tattoo parlours and in the Kings Cross precinct.
The No 2 Bill broadens this under a new subsection 148(f), which allows police to use drug dogs without a warrant on “persons at, or seeking to enter or leave, any part of premises that the officer is authorised to enter under section 10 of the Restricted Premises Act”.
The Restricted Premises Act 1943 (NSW) allows for “the declaration of premises and the closure of premises on which certain illegal activities are suspected of being carried on”. Section 10 of this Act outlines that police can enter any such premises deemed restricted, along with the land it’s on.
And the No 2 Bill also makes a slight amendment to subsection 210N(2) of the LEPRA, which clarifies that when a Local Court makes an order regarding stock mustering, the owner of the stock must present the police officer in charge of the closest police station with a copy of the order.
The public services minister explained that currently this condition in only required when there’s no police officer party to proceedings, however because the NSW police commissioner is always a part of them, “the requirement technically” doesn’t generally apply.
More to come…
So, that marks the end of the first rundown of how the authorities have seen fit to close up the “gaps” in this state’s laws.
Next week, we’ll take a look at changes around female genital mutilation, and enhancements to the search powers of correctional officers and sheriffs.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.