It’s been another huge year in NSW parliament. The focus this time, however, wasn’t so much on rights eroding counterterrorism legislation, but the further stripping of civil liberties through last month’s enactment of the anti-protest Right to Farm Bill 2019.
But, NSW attorney general Mark Speakman has also focused on closing “gaps in the law that have become apparent” during his time in office. And that’s what the Justice Legislation Amendment Bill (No 2) 2019 (the No 2 Bill) is all about.
Last week, Sydney Criminal Lawyers took a look at how this bill – which was passed on 20 November – has allowed police to tamper with electronic devices and broadened the scope of sniffer dog operations. And this week, we’ve decided to delve into the legislation a little further.
The No 2 Bill makes a number of significant changes to the Criminal Procedure Act 1986 (NSW) (the CPA), which is the piece of legislation that sets out how the criminal justice system administers and prosecutes both indictable and summary offences.
The first amendment is that subsection 59(b)(i) of the CPA no longer requires that a magistrate provides an oral explanation of the committal process to the accused if they’re represented by a legal practitioner – rather, a written explanation will now simply suffice.
The amendment bill also inserts the offence of ongoing drug supply under section 25A of the Drug Misuse and Trafficking Act 1985 into schedule 1 of the CPA, which means this crime can now be dealt with summarily, meaning within a Local Court, before a magistrate and without a jury.
Protections for complainants
Several offences contained in the Crimes Act 1900 have now been added to the definition of a “prescribed sexual offence” under section 3 of the CPA. Defining a sexual crime as a prescribed offence provides the complainants with enhanced protections during court proceedings.
The newly included offences are performing or procuring female genital mutilation under section 45 of the Crimes Act, along with section 45A, which entails removing someone to another jurisdiction so they can undergo female genital mutilation.
And section 316 has been added as well, when it involves concealing a prescribed sexual offence.
During the second reading speech on the No 2 Bill, Liberal MLC Natalie Ward explained that the “principal protected confider” rule limits court disclosure of counselling communications involving sexual assault victims.
And in relation to this, section 300 of the CPA has been amended so when a protected confider is under 14, a person the court determines as suitable can consent for this information to be disclosed.
This suitable person can’t be the accused or connected with proceedings and must be acting in the child’s best interest.
Widening corrective services reach
Turning to the Crimes (Administration of Sentences) Act 1999, the No 2 Bill makes amendments to section 257A of this Act, which essentially opens up the capabilities for the commissioner of Corrective Services NSW to share information they’ve obtained with Australian intelligence agencies.
Subsection 257A(4) explains that the relevant bodies are law enforcement agencies, any intelligence agency of an Australian jurisdiction, state or territory government agencies or “a person or body prescribed by the regulations as a relevant agency”.
The bill also broadens the stop, search, seize and arrest powers of corrective services officers in relation to relevant offences under the Act. These include smuggling drugs, alcohol or syringes into prisons, as well as the unlawful possession of weapons, phones, and remotely powered aircraft.
Changes to sections 253I and 253J allow officers to stop, detain and search persons and vehicles, as well as seize items, in the vicinity of places of detention for this wider range of offences. And there’s now also a broader scope regarding what can be seized as evidence of these crimes.
New sheriff in town
The Office of the Sheriff of NSW is charged with ensuring the safe running of state courts. Wearing uniforms similar to those worn by police, sheriff’s officers conduct law enforcement, security and support duties within the NSW court system.
These official law enforcement officers are governed under the provisions of the Sheriff Act 2005 (NSW). And the No 2 Bill has just gifted sheriff’s officers with some enhanced powers, when it comes to carrying out their duties.
The amendment bill inserts section 7B into the Sheriff Act, which stipulates that when a sheriff’s officer is issuing an arrest warrant, they can now require the subject of the document to undergo a search if the officer believes on reasonable grounds that they could be carrying a dangerous item.
The officer may then seize the suspect item. But, if they determine that it’s not dangerous, they must immediately return it to the served person. The officer must also state why the search is necessary and whether the person will be required to remove any items of clothing.
The search must be carried out by an officer of the same sex as the person being searched. And if an officer requires a person being served with a warrant to do something and they refuse to do it after two requests, then this person may have committed an offence, which can result in a $550 fine.
That hassle entering court, has just gotten worse
It’s been a longstanding gripe of NSW lawyers that when they enter courts – which they do so on a regular basis – that sheriff’s officers require them to stand in queue and wait to go through security with the rest of the general public, while police and prosecutors are simply waved through.
Well, the attorney general has seen fit to make that experience just a little bit more frustrating for lawyers when entering their regular places of work. Section 4 of the Court Security Act 2005 now requires those entering a court to remove their belts, along with the other already required items.
While section 10, now stipulates that an officer can require an individual to submit to a person search following an initial scanner search, if the officer believes it’s appropriate.
This is in addition to a pre-existing sheriff power that already allows further searching due to a reasonable suspicion of possession of a restricted or offensive item.
It doesn’t end there
But, this further perusal of the legislation has hardly exhausted the broad changes the Berejiklian government has seen fit to make to the NSW justice system, such as new laws permitting NSW police to obtain information linked to housing, along with changes to the Bail Act 2013 (NSW).
So, we’ll be back next week with another instalment on the recently passed and extremely extensive amendment bill.
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.