NSW Police Force: A Law Unto Themselves

by Zeb Holmes

New powers given to police are looking even worse than initially feared, as concerned groups delve into the breadth of their applicability.

The NSW Bar Association points out that new ‘public safety orders’ (PSOs) and ‘serious crime prevention orders’ (SCPOs) can be used to prevent individuals from visiting certain places open to the public, such as churches, mosques, sporting arenas and licensed premises, even where there is no evidence of any danger or wrongdoing.

Public Safety Orders

The new laws now allow 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.

Serious Crime Prevention Orders

Police can also now apply to the Supreme or District Court for SCPOs that can carry a range of onerous conditions, including:

  • prohibiting a person from engaging in specified activities,
  • regulating who they can associate with,
  • limiting their business dealings, and
  • preventing them from using certain technologies, including those which area part of modern life such as computers and mobile telephones.

In order to get such orders, police only need to show to the court – through documents prepared by themselves – that an individual is suspected of engaging in crime-related activity; a very low test. Any breach of the orders carries a maximum penalty of five years imprisonment.

Rival Justice System

These NSW police powers have led commentators to conclude that our State is setting up a ‘rival criminal justice system’, where police are able to impose restrictions on ordinary daily activities without evidence of wrongdoing, let alone a court order, and without the individual having a right of appeal to a court.

There are specific concerns police will use the laws to stop public protests by excluding organisers and speakers from demonstrations and rallies, and that they will target members of minority groups.

Political Response

During parliamentary debate, Labor Party MP Adam Searle proposed amendments which would have incorporated some judicial oversight and an avenue for appeal, but these were voted down. Searle expressed concerns that, “We have these powerful orders that relatively junior police officers can issue against a person based on that police officer’s belief, which may or may not be correct but which certainly cannot be scrutinised or reviewed.”

Greens MP David Shoebridge found it unsatisfactory that police can use the powers on a ‘gut feeling’, without having to produce any evidence that the targeted person is a threat or danger.

Freedom of Religion

Religious freedom is one of the few rights guaranteed by the Australian Constitution; with section 116 stating that:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

When potential concerns about the proposed new law encroaching upon access to mosques were raised in parliament, the Minister for Roads, Maritime and Freight, Duncan Gay, remained silent. Yet when the issue turned to religious access generally, Mr Gay made the astonishing comment, “the police like churches” – the inference being that the laws might be used to stop Muslims from going to mosques, but not Christians from attending churches.

At that point, Greens MP Mr Shoebridge interjected, stating “Let us be clear, those opposite want to be able to make unreviewable orders to prevent somebody from going to a mosque for the rest of their natural life and that is why they oppose a right to appeal.”

Bar Association Response

The NSW Bar Association expressed disappointment that the government failed to consult community groups before rushing the Bill through parliament, giving only a limited, substandard explanation of the laws. But Police Minister Tony Grant has remained unapologetic, essentially arguing that desperate times call for desperate measures – that there was a pressing need for police to be given the means to fight serious crime without interference from the courts.

The Bar Association disagrees, contending there was no such pressing reason to push the laws through parliament without consultation, and that the laws represent a significant expansion of police powers and erosion of the separation of powers, right against arbitrary interference by the state, right to due process and freedom of religion. “No evidence has been cited as to the ineffectiveness of the administration of criminal justice by a process of trial for ‘reducing serious and organised crime’ in New South Wales,” the Bar Association said.

It added that the laws have ‘doubtful constitutional validity’, flagging a possible challenge in the High Court.

Author

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.

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