On November 22, the Berejiklian government passed one of the most draconian pieces of legislation the western world has ever seen. The laws enable authorities to further penalise inmates for crimes they haven’t committed or even planned, but rather, for crimes the attorney general feels they may commit in the future.
The Terrorism (High Risk Offenders) Bill 2017 allows for an offender’s prison sentence, or period of supervision, to be extended for up to three years on the basis that it’s suspected they could pose a “risk of committing a future serious terrorism offence.”
Under the future crime regime, the state may apply to the NSW Supreme Court for an extended detention or supervision order, which will require a judge to guess whether a convicted offender might commit a terrorist offence based on the assessments of relevant experts.
And once these extension orders expire, a further one can be applied for. And on and on – potentially until the end of the inmate’s life.
But these laws don’t only apply to convicted terrorists. They apply to an offender whose crime is classed as occurring in a “terrorism context.” They can even apply to inmates who authorities claim has associated with another who’s advocated support for terrorist acts, whether they allegedly associated behind prison walls or otherwise.
New classes of terrorists
“These laws have greatly expanded what the state government now defines as a terrorism offender,” said NSW Greens MLC David Shoebridge. He explained there are now three classes of terrorism offenders that are eligible for an extended detention or supervision order.
The first class is a convicted terrorist offender. This is a prisoner serving time for committing an offence as a member of a terrorist organisation. It also includes an inmate who has previously served time for such a crime, and is currently detained for another indictable offence.
Then there’s the convicted underlying terrorism offender. These are inmates serving time for a range of serious crimes that are said to have been carried out in a terrorist context, such as advancing a political, religious or ideological cause, or coercing the government.
Their offences can include grievous bodily harm, a firearm offence, or serious damage to property.
Mr Shoebridge pointed out that this class of terrorism offender could potentially include the people recently involved in defacing LGBTIQ murals in Sydney’s Inner West “trying to change policy on marriage” following the successful yes vote.
Broadening the reach
And the third class is the convicted terrorism activity offender: an inmate who has committed an indictable offence, who used to be a member of a terrorist organisation, has made statements advocating terrorist acts, or is associated with someone involved in terrorism.
These can be “people whose cousin, brother or sister, somebody in their sporting club, a fellow prisoner, or their close associate is involved in a terrorism activity,” Mr Shoebridge explained.
“It’s a very wide net. But, the government has promised to use it wisely,” he told Sydney Criminal Lawyers®. However, “history proves that those promises are too often broken by future governments, which is why we oppose the law.”
A progressive erosion of freedoms
NSW attorney general Mark Speakman said in the second reading speech on the bill that the state government was making no apologies for the tough new laws that “keep offenders behind bars or under supervision after they have completed their sentences.”
“The bill adds to the already strong arsenal of laws aimed at disrupting terrorism and keeping the community safe,” he continued.
And this arsenal of laws the Coalition government has enacted over recent years in the name of counterterrorism and organised crime has actually been slowly eating away at the civil liberties of NSW citizens.
Since July this year, NSW police have had the power to shoot to kill without fear of prosecution at incidents deemed a terrorist act.
Senior police are able to issue public safety orders without court oversight, banning a person from a place or an event for up to 72 hours a week. While courts can issue directives restricting several aspects of a person’s life, without proof they’ve committed or facilitated a crime.
Investigative detention provisions allow for terror suspects, as young as 14, to be held for up to 14 days without charge. And last year’s swag of anti-protest laws dramatically increased police powers to counter public protest against mining operations.
A slippery slope
But, now the NSW government has legislated its first future crime laws. A broad range of incarcerated individuals can now be deemed terrorists and sentenced to further prison time for a crime they might not have even thought of at the time their detention is extended.
“Until these last few years of highly politicised terror laws that concept of putting someone in gaol… for a crime that there is a risk they may commit in the future has never been part of our criminal justice system,” Mr Shoebridge said.
Catching up with the cops
However, it’s recently been revealed that NSW police has been operating a secretive program to prevent future crime since 2000. The Suspect Targeting Management Program (STMP) targets re-offenders, as well as individuals police merely consider to have the potential to commit crimes.
And once on the list, targeted individuals, who are often children, are repeatedly stopped and searched by police. And officers also make regular visits to their homes, regardless of which type of offence, if any, they’ve committed in the past.
“Police are effectively monstering individuals because they’re profile, according to a secret assessment tool, suggests they may commit a future crime,” Shoebridge explained.
And due to the secrecy surrounding the program, individuals subject to the STMP are unable to access the reasons why they’ve been placed on the program, and nor are they able to find out how to get off it.
An Orwellian future
NSW police has been operating under the concept that a person can be guilty before they commit a crime for many years. And now that concept has been enacted into NSW laws pertaining to prisoners. But, the real fear is just how much further this premise could be enshrined into law.
“The state of NSW is moving down a path where they put you in gaol because they don’t like what you might do in the future, they don’t like the look of you, and they don’t like what you say,” Mr Shoebridge continued.
“And that’s the stepping off point for an authoritarian state,” he concluded.
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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.