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New Criminal Legislation 2005

by Andrew Haesler SC
Deputy Senior Public Defender
1 March 2006 A paper presented to NSW Young Lawyers –18 March 2006

Introduction

This year’s themes are, sex, violence and the legislative response to the threats to our way of life posed by terrorism and other forms of antisocial behaviour such as sex, violence and interfering with the cricket.

As always the new laws show complete contempt for my “broccoli principle”: The theory of law reform that Parliament shouldn’t bring in any new laws until they actually use the ones they’ve got!

There is a continuing trend, where for certain crimes, be they terrorism or child sexual assault or threats to public order or safety (which means almost every crime), the result is not just a penalty and temporary forfeiture of rights but the classification as a non-citizen for whom basic rights have been forfeited permanently.

Also continuing and worrying is the political extravagance in exploiting for temporary popularity the denial of basic human rights. Any move to control crime is now depicted as part of the “war on” whomever it is now seen as politically expedient to demonise.

Tough new laws match the “tough on crime” rhetoric. While some may see them as a legitimate response to community concerns about "beasts in our midst”, they at best ignore, and at worst actively subvert, fundamental principles.

Accompanying these trends are considerable increases in the powers of the Commissioner of Police and the Commissioner for Correctives Services: Powers, which may be technically reviewable but pit the feeble power of the individual against overwhelming power of the state.

For years police and security agencies have had a wish list of powers, which they would dearly like to exercise. Every new crisis, real or manufactured, gives these agencies the excuse to proffer these new powers as a cure to prevent acts of violence. That the extrinsic evidence does not support these claims, and can be shown to be snake-oil remedies, matters little.

The introduction of the American disease of naming legislation after the victim of a specific crime is not just annoying but a perfect example of the old adage - bad cases make bad law. I am tempted to subtitle this talk, “The grumpy old defence lawyer’s guide to recent criminal laws!” A disclaimer – the following is an idiosyncratic summary. There is no substitute for reading the text of the new Acts.

Violence

Law Enforcement (Powers and Responsibilities) Act 2002 - commenced on the 1 December 2005

Only 3 years after it was passed this consolidation and revision of most police powers has commenced. For a detailed review of this Act see my paper “Police Powers 2006” on the Public Defenders website.

Law Enforcement Legislation Amendment (Public Safety) Act 2005 – commenced 15 December 2005

The Cronulla Amendments: Within days of the Law Enforcement (Powers and Responsibilities) Act 2001 commencing it was changed in response to the “race riots” at Cronulla.

A new part 6A has been added to the Act. The amendments were designed to "prevent and diffuse large scale public disorder". They allow for cordons and roadblocks to be set up, for the closure of licensed premises for emergency alcohol free zones. They bring in new offences and higher penalties.

The Commissioner of Police or Assistant Commissioner can make public disorder orders, closing off or cordoning off an area or areas and authorising roadblocks, for up to 48 hours. The period can be extended by order of a Supreme Court Judge. In “target areas” or where road blocks are set up to prevent people entering or leaving a target area, police can stop and search vehicles and people (including their mobile phones) and ask them to disclose their identity on pain of criminal conviction.

The rationale for the legislation was the serious risk to public safety said to have been posed by a group of racist yobs behaving as if they were at the cricket.

Section 87I provides power to prevent entry or leaving an area. Leaving can only be prevented to avoid risk. Of particular importance to s.87N which allows any police officer to stop vehicles on reasonable grounds that there is a threat of large scale public disorder happening.

Police now have the power seize mobile phones and vehicles for up to seven days. The Local Court can extend the 7-day period but not shorten it (s.87M).

A new offence has been added to the Crimes Act -assault during a public disorder” (s.59A - maximum penalty 5 years or 7 years if actual bodily harm is occasioned).

The penalties for riot and affray were also increased: s. 93B(1) Crimes Act - riot, from 10 to 15 years and s.93C (1) Crimes Act – affray” from five to 10 years.

Section 8D of the Bail Act 1978 was amended to provide for a presumption against bail for any riot or affray offence or for any offence, carrying a maximum of more than two years imprisonment, committed in the course of participating in a large scale public disorder. Despite this presumption the judicial discretion to grant bail still remains if the person satisfies the court that bail should not be refused. A heavy onus, but one that with appropriate evidence can be met. See the judgment of Sully J in R v Newby, unreported SC NSW 27/1/2005.

The Ombudsman is to monitor the legislation, which has a sunset clause of 2 years.

As usual with emergency police “reforms” a few extras were snuck in - to correct anomalies. Extra search powers were included in sections 14, 15 and 36A Law Enforcement (Powers and Responsibilities) Act 2001. Police may now search, "all occupants in a vehicle” if it is stopped in connection with an indictable offence. The occupants must identify themselves to police or be identified by the driver. Failure to comply with a direction is regarded as serious offence.

To introduce the legislation the Premier, Mr Iemma, called an extraordinary session of Parliament. In the second reading speech he spoke of the need to protect public safety (just as Premier Bjelke-Peterson did in Queensland when the Springboks toured). The Premier made the bold claim that; "louts and criminals have declared war on our society and are attempting to undermine our way of life.” He described the new laws as "prudent". He went on to note, "if you tear up the fabric of society you will pay the price".

To the Premier, and the overwhelming majority of parliamentarians who passed the new laws, bail was "unacceptable for thugs and morons". The legislation was designed to "shut the revolving door". The Premier assured police that they can do their job knowing they will be “backed up”. Sound policing will not be second guessed, police should be free to use these powers, and order will be upheld. Our police will be backed to the hilt … in the name of the law abiding majority."

Implicit in what the Premier said was that Magistrates and Judges were not doing their job. That job, it appears, is not to administer the law firmly and justly, but to back up the police.

When the amendments first came in I predicted they would first be used at somewhere like Walgett. I was wrong; the new laws were first used in West Dubbo!

Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005 - commenced 16 December 2005

Despite the fact it has yet to be used the Terrorism (Police Powers) Act 2002 has been amended and “strengthened”. (So much for my broccoli principle!) The amendment Act makes some big claims. It is designed to:


a. Prevent terrorist activity occurring, and
b. Preserve evidence.
Application can now be made to a Justice of the Supreme Court for suspects to be detained for up to 14 days. The application can be made without the suspect’s notice. The amendments complement the equivalent provisions in the Commonwealth Criminal Code Act 1995. Hearings are before a closed court and information may be withheld from the suspect on national security grounds or because of public interest immunity. Unlike the Commonwealth Code it is not an offence to disclose that you are being held under a preventative detention order. Provision is made for applications for revocation of any order made.

Although contact is allowable with lawyers, any contact may be monitored. And the Supreme Court can make a non-contact order.

Terrorism Legislation Amendment (Warrants) Act 2005 - commenced 13 September 2005

The NSW police and Crime Commission now have the capacity to covertly investigate terrorist activity, which is believed to be in a preparatory stage.

The new sections 27A to 27ZC of the Terrorism (Police Powers) Act 2002 allow for covert searches if a “nominated” Supreme Court Judge is convinced that there are reasonable grounds for such a search. Section 3 extends the meaning of “terrorist act” to anything involving an act of force or threat of force or membership of a terrorist organisation. It includes preparatory acts in support of terrorism such as financial support.

Amendments to the Listening Devices Act 1984 now allow for long duration warrants (up to 90 days) for both Commonwealth and state offences. A new section 310J Crimes Act 1900 makes it an offence to be a member of a terrorist organisation. It mimics s.102.3 Criminal Code Act 1995 (Comm.).

Crimes Amendment (Grievous Bodily Harm) Act 2005 - commenced 12 August 2005

The Crimes Act 1900 definition of “grievous bodily harm” has been amended to include the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm Act. The new definition has particular relevance to sections 33, 35 and 52A Crimes Act 1900. The reform implements the recommendations and findings of the Court of Criminal Appeal in R v King (2003) 59 NSWLR 472

.

Other Animal Acts.

Crimes Amendment (Animal Cruelty) Act 2005 - commenced 16 December 2005

Two new offences have been added to the Crimes Act 1900 - serious animal cruelty; where an offender intends to inflict severe pain on an animal and kills or causes serious injury or prolonged suffering to an animal (s. 530 (1) -maximum penalty 5 years). And. killing or seriously injuring animals used for law enforcement - where the offender intentionally kills or seriously injures an animal knowing that it is being used for law enforcement purposes (s.531- maximum penalty 5 years). These matters can be dealt with summarily unless the prosecutor otherwise elects.

Crimes (Sentencing Procedure Amendment) Existing Life Sentences Act 2005 - commenced 6 May 2005

The Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 provisions relating to prisoners sentenced to life before the 1999 Acts came into force have been changed again. Since 1989 a series of amendments have tried to “cement” into gaol, forever, those subject to such a recommendation, no matter how misconceived or wrong that recommendation was.

The recent amendments come in response to the decision of Dunford J in R v Blessington [2005] NSWSC 340, which opened the door ever so slightly to the possibility that Mr Blessington may one day be released.

Where before 1990 a sentencing judge had recommended that the offender be sentenced to life imprisonment and "never be released", this recommendation and the subsequent prohibition on the prisoner ever being released continues even if the non-release recommendation is subsequently quashed, set aside or called into question.

Crimes Amendment (Road Accidents) (Brendan’s Law) Act 2005 - commenced 13 February 2006

I may be wrong but it appears we now have the first example in NSW of the American disease of naming a new criminal amendment after the victim whose demise led to its introduction. “Brendan’s law” amends the Crimes Act 1900 to oblige drivers to stop and provide assistance where their vehicles are involved in accidents that cause death (s. 52 AB (1) - maximum penalty 10 years imprisonment) or injury (s. 52 AB (2) maximum penalty 7 years imprisonment).

Similar summary provisions were introduced into Road Transport (Safety and Traffic Management) Act 1999. The new s.70 has a significantly lower maximum penalty - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

Sporting Venues (Offenders Banning Orders) Act 2005 - commenced 18 January 2005

Is nothing sacred! Our way of life is clearly under threat. It appears we can no longer wave flags, abuse foreigners, strip naked and run onto cricket pitches or football fields. We now have an Act, which aims to prevent violence and disorder at sporting events. (I had always thought that violence and disorder were the implicit rationale for sporting events). If a person is convicted of a sporting venue offence they can be banned from returning to the venue. A sporting venue offence includes any offence of actual or threatened violence, riot affray, serious racial vilification or malicious damage to property or aiding and abetting such offences.

A “sporting venue” is any place where sport is played or watched and a fee is paid to enter or entry is by membership only. A banning order can be made at or after time of sentence. Evidence additional to that called to prove the conviction fro the initial offence can be called. Bans can last for five years for a first offence and 10 years for a second offence. After two thirds of the ban is served a person can apply to the Local Court for revocation. A $5,500 fine and/or a six-month gaol penalty can be imposed for breaches.

Confiscation of Proceeds of Crime Amendment Act 2005 - commenced 28 October 2005

The Confiscation of Proceeds of Crime Act 1989 now allows for freezing notices, the seizure and restraint of property and supervision of damages paid to offenders with mental illnesses or those found not guilty by reason of mental illness.

Criminal Assets Amendment Act 2005 - commenced 1 August 2005

The list of offences in Criminal Assets Recovery Act 1900 in relation to which assets may be confiscated has also been extended.

Sex

Criminal Procedure Amendment (Evidence) Act 2005 - commenced on 12 May 2005

2005 saw some significant amendments to the Criminal Procedure Act 1986 relating to the conduct of sexual assault trials.

Part 5 of Chapter 6 Criminal Procedure Act 1986 makes special provisions for sexual offences.

Division 1 deals with; non-publication orders and the hearings in camera; restrictions on cross-examination of the sexual experience of complainant; warnings to be given if no immediate complaint is made; prohibitions on the cross-examination of complainants where an unrepresented accused persons and provision of close circuit television (CCTV).

Division 2 relates to sexual assault communication privilege.

A new Division 3 has been added to Part 5 of Chapter 6. Sections 306A – 306G Criminal Procedure Act 1986 make special provisions for retrials of sexual offences, after appeal. Division 3 relates only to re-trials after appeals and does not apply if there is a hung jury or the trial is terminated without verdict for some other reason.

Following a successful appeal, the record of interview of a complainant and any evidence given in a first trial is admissible as the complainant's evidence in any subsequent trial. As a consequence a complainant need not appear at the retrial.

The new provisions applied to all new trials from 12 May 2005. The best available evidence, first video, then any tape recording, then transcript, is to be tendered. It may include any initial electronically recorded interview with the complainant (if available and admitted pursuant to the Evidence (Children) Act 1997), the best record of the examination-in-chief and cross-examination, and exhibits tendered through the complainant.

Videotaping of trials took place in semi-secret even before the commencement of the Act, just in case there were to be a successful appeal. The new trial judge has no discretion but to follow the procedure, however the first trial's evidence can be edited by agreement or to remove inadmissible material, as if the evidence had been given orally (s.306B (7)).

The complainant, on her or his election, may give extra evidence with the court’s leave but such evidence does not expose the complainant to questioning at large (s.306D (3)). Questions may be asked only with leave and then only to clarify original evidence, canvas material that is new since the original hearing or if the questions are shown to be in the interests of justice. A 2005 Judicial Commission study of the sentencing of offenders convicted of child sexual assault from 2000-2003 noted a decline in the number of conviction appeals in child sexual assault matters over the four-year study period from 46 year to 15. On average conviction appeals were upheld in over half of the cases. Of them, 50% were sent for re-trial and the Court of Criminal Appeal acquitted 50%. On average there are between 6 – 10 retrials ordered per year.

Criminal Procedure Further Amendment (Evidence) Act 2005 - commenced 12 August 2005

A new section 275A was added to the Criminal Procedure Act 1986 to restrict hostile cross-examination of witnesses. It imposes mandatory obligations on the trial judge and thus extends the discretionary provisions found in s.42 Evidence Act 1995. It applies to all criminal offences. A court must disallow questions, which are misleading, confusing, insulting or belittling, whether or not there is an objection.

A new s.294C provides that a complainant in a prescribed sexual offences entitled to a support person of their choosing. An accused cannot object to the support person and a court can only disallow the chosen support person if the proceedings are likely to be prejudiced by their presence, for example if they are a witness in the proceedings.

A new and extended definition of “prescribed sexual offence” is added to the Criminal Procedure Act 1987. It extends the meaning of the term to historical offences. It applies to committals, in particular to s.91 (9) - restrictions on the calling of witnesses.

Criminal Procedure Further Amendment (Evidence) Act 2005 - commenced 25 November 2005

Preparing to defend a sensitive trial has been made even harder by the new section Division 2A of Part 6 Criminal Procedure Act 1987 (sections 281A-F). The prosecution can now refuse to provide the defence with copies of "sensitive evidence". Sensitive evidence includes photographs of the victim, photographs of the accused committing a sexual offence, post mortem photos and photographs showing the crime or the deceased at the crime scene. All the essential information the defence and their experts need to understand their Brief is now completely under the control of their opposition! The restrictions on the defence (and their experts) having access to this material depends on their acceptance of the conditions imposed by the prosecution.

Section 291 provides for the evidence of the complainant in sexual matters to be given in camera unless the court decides otherwise.

Criminal Procedure Amendment (Sexual Offences Case Management) Act 2005 - commenced 1 December 2005

Special provisions are now made for the case management of sex offence matters, again by amendments to the Criminal Procedure Act 1987 (s.130A). They allow for pre-trial rulings to bind future judges contrary to the common law position that one judge’s ruling could not bind the next (see GK v R [2003] NSWCCA). Section 130A provides that a pre-trial order made by a judge in a sexual offence proceeding is binding on any subsequent trial judge unless in the opinion of the trial judge it would not be in the interest of justice for the order to be binding.

If, after appeal, a new trial is ordered, any pre-trial order made by a judge in relation to the proceedings similarly binding unless the pre-trial order is inconsistent with an order made on appeal or in the opinion of the trial judge it would not be in the interests of justice for the order to be binding. If proceedings for a trial judge are discontinued for any reason a pre-trial order made by a judge in respect to the proceedings is similarly binding.

Child Protection (Offenders Prohibition Orders) Act 2004 - commenced 1 July 2005

Police can apply to the Local Court to make prohibition orders preventing convicted child sex offenders and other serious offences against children, from engaging in certain conduct. The Child Protection Offenders (Offenders Registration) Act 2000 now provides that the person (if not already on it) can be placed on the Child Protection Register.

Prohibition orders, it is said, are not part of the sentencing process Orders can be made prohibiting conduct no compelling it. There must be evidence the person poses a risk to the life of sexual safety of children. Section 53 lists the factors to be considered. Matters to be prohibited are association with certain people, behaviour and employment. Orders can last up to five years (or two years for a juvenile). There is a two-year penalty for any breach of an order. Hearings take place in a closed court. There is provision for an appeal to the District Court and for review by the Local Court on the application of the Police or with leave of the person affected.

The Act is part of a general trend across the country for ongoing control of sexual offenders after sentence and the effective or actual imposition of indeterminate sentences On 1 March 2006, just as I was finishing this paper, the Premier announced that NSW would get its sex offender preventative detention and control order legislation, “in the interests of community safety.. The results are often effective punishments that are not proportionate to the seriousness of the offence. The validity of indeterminate sentences was confirmed by the High Court in Farden v Attorney-General (Qld) (2004) ALJR 1519.

In Victoria recent debate on legislation designed to keep sex offenders in gaol, or on strict conditions after their sentences expire, was characterised by a distinct lack of empirical support for the conclusions put forward as fact and for politicians outbidding each other in relation to the misinformation they put forward and calls that such legislation, “did not go far enough”. See K. Warner Sentencing Review (2005) 29 Crim. LJ 355 at 365

The same has and will occur in NSW.

The claim that legislation of this type is not punitive is ridiculous. Whatever the arguments in favour of community protection and the rehabilitative effect of such orders they are, given my simple view of the world, a thoughtless response to hysterical bidding in the law and order auction. Given the present difficulties ex offenders have in obtaining parole it will soon be the case, if it isn't already, that those sentenced for sexual offences will be forced to serve the whole of their sentence in custody and not be eligible for parole (see below). The post sentence control order will soon become a defacto indefinite parole provision allowing “prevention” to put to the side basic sentencing principles of proportionality and parsimony.

Crimes Amendment (Child Pornography) Act 2004 - commenced 1 February 2005

Section 91G Crimes Act now provides that children are not to be used for pornographic purposes. What is meant by pornographic is left to the common law. Any person who uses a child who is under the age of 14 years for pornographic purposes i.e. engaged in sexual activity or where the child is placed in a sexual context (maximum penalty 14 years imprisonment).

Procuring a child for pornographic purposes carries a maximum penalty of 10 years imprisonment. Section 91H creates an offences of production, dissemination or possession of child pornography (maximum penalty 10 years imprisonment). Section 91H (3) makes possession of child pornography an offence (maximum penalty 5 years imprisonment). Certain limited defences are set out in s. 91H(5).

Prison

Crimes (Administration of Sentences) Amendment Parole Act 2005 - commenced 10 October 2005

The Parole Board is now to be known as the State Parole Authority (s.183 Crimes (Administration of Sentences) Act 1999). At least one member of the Authority must be a person who in the opinion of the Minister has an appreciation or understanding of the interests of victims of crime. Section 135(2), which lists the matters that must be taken into account when considering granting parole, has been changed, making it harder to obtain parole.

If a notice of intention to refuse parole notice is issued there is no longer an automatic hearing, one is fixed only if a hearing is warranted (s.139).

If parole is refused when a person is first eligible there is an automatic deferral for 12 months and the inmate must make an application to be considered again (s.137). Parole can be considered earlier in circumstances where it is shown to constitute a "manifest injustice" (s.137B).

The Commissioner of Corrective Services is given power to make submissions in relation to parole (s.141A) and the Minister is entitled to be given access to all documents (s.193A). Similarly, victims of serious offenders may be given access to all documents apart from the contents of medical and psychological reports. If parole is revoked, parole cannot be considered for 12 months. This will have an enormous impact because at present when revoked most parolees have less than 12 months left to serve of their sentence. They will have to serve the balance of their sentences without the prospect of parole.

If they have re-offended on parole and received a sentence they will not be released at the end of that period if they still have balance of parole to serve. This is because of the definition "parole eligibility date" inserted in s.3 Crimes (Administration of Sentences) Act 1999.

Child Protection (Offender Registration) Amendment Act 2004 - commenced 29 September 2005

The new Act amends the Child Protection (Offender Registration) Act 2004 to facilitate the implementation of a national scheme of offender registration. Section 3D provides the court can order that a person convicted of a non-registrable offence must register by making a child protection order.

Juvenile Offenders Legislation Amendment Act 2004 - commenced 20 December 2004

Concerns about the management of Kariong Juvenile Detention Centre have led to changes that establish an intermediate system of imprisonment for some offenders aged 16 to 18 and all aged 18 to 21, who committed their offences as children. Amendments to sections 41B, 41C and 23 Crimes (Administration Sentences) Act 1999, allow for the imposition of adult-type administrative punishments on these young persons and allows for the transfer to adult gaols of those aged over 18, at the almost unfettered discretion of the Commissioner for Corrective Services. They effectively allow for a court’s order (pursuant to s. 19 Children’s (Criminal Proceedings) Act 1987) that a child offender remain in a juvenile institution until they turn 21 to be undermined.

Section 41C allows the Commissioner to order a juvenile inmate of or above the age of 18 years to be transferred from a juvenile correction centre to an adult correctional centre. Section 41 (3) sets out the reasons for such a transfer. They include the inmate’s wishes and behaviour, safety and security concerns and the “good order and discipline within the juvenile correction centre”.

The powers given to the Commissioner are extensive. The Commissioner is not bound by any of the critical requirements in s.19 Children’s (Criminal Proceedings) Act 1987. As there is no provision for appeal of the Commissioner’s decision, the Commissioner can, in effect, transfer juveniles to adult gaols, as he or she likes.

Crimes Interstate Transfer of Community Support Orders Act 2004 - commenced 24 November 2004

Provision now exists for cooperation between NSW and other States and Territories, to allow Community Services orders to be served interstate and for NSW residents who receive such sentences in other states to serve their orders here. NSW and ACT have signed up for the scheme and a pilot has commenced.

Wait There’s More

Jury Amendment Act 2004 - commenced 15 December 2004

When two jurors took an unauthorised trip to visit the crime scene it lead not only to a successful appeal (R v Skaf (2004) 60 NSWLR 86) but calls from the press and the court for criminal sanctions to be placed on jurors who transgressed the directions given them by trial judges. Reforms were swiftly introduced into the Jury Act 1977.

A new s. 68A makes it an offence to solicit information from or harass jurors or former jurors -maximum penalty 7 years imprisonment.

Section 68B(1) prohibits disclosure of information by jurors of the deliberations of the jury, or how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest-maximum penalty 20 penalty units.

Section 68B (2) prohibits a person (including a juror or former juror) for a fee, gain or reward, disclose or offering to disclose to any person information about the deliberations of a jury - maximum penalty 50 penalty units.

Section 68C prohibits inquiries by juror about trial matters such as obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror- maximum penalty 50 penalty units or imprisonment for 2 years, or both.

“Making an inquiry” includes the following:


i. asking a question of any person,
ii. conducting any research, for example, by searching an electronic database for information (such as by using the Internet),
iii. viewing or inspecting any place or object,
iv. conducting an experiment,
v. causing someone else to make an inquiry.
The sheriff can investigate irregularities (s. 73A)

A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a 66C offence (s55DA).

Sanity

Mental Health (Criminal Procedure) Amendment Act 2005 - commenced 1 January 2006

Long awaited amendments to the Mental Health (Criminal Procedure) Act 1990 now state that a Judge sitting alone is to determine fitness hearings (s. 11). Special hearings following the finding of unfitness are also to be heard Judge alone unless the accused, their legal representative or the prosecution elect for a jury trial (s. 21A). These provisions apply to proceedings, which commenced after the 1 January 2006.

Other changes make it clear that the Attorney General has no role in deciding whether a special hearing or a fitness hearing is to be held. Determination of the matter is for the court. Generally, it is up to the DPP or the defence to raise the issue with the court.

Section 39 of the Mental Health (Criminal Procedure) Act 1900 has been amended so that where a person is released and not detained following a verdict of not guilty on the basis mentally illness, such release can only be made if the court is satisfied on the balance of probabilities that the public won't be seriously endangered. The Minister described this as providing an "extra level of comfort to the community".

In addition, the Mental Health Review Tribunal and the Minister of Health must be notified as soon as practicable by the Court's Registrar of any finding of "not guilty" on the grounds of mental illness.

Section 93(1) of the Mental Health Act 1900 was amended to allow for the Minister of Health to order the arrest, detention, care and treatment of person if there is any breach of a s.39 order for its infective enforcement. These provisions are similar to s.84 of the Mental Health Act 1900 which relates to those released following an order of executive government.

Section 23 (5) and (6) Mental Health (Criminal Procedure) Act 1900 allow for the accumulation of limiting terms following a conviction after a special hearing, correcting an anomaly that was noted in R v Ti [2005] NSWCCA 337. It provides that any accumulation must follow ordinary sentencing principles.

Section 32 of the Mental Health (Criminal Procedure) Act 1900 allows Magistrates to divert intellectual or disabled or mentally ill offenders from the criminal justice system. It has been amended to ensure that those who are ill or disabled at the time of the offence, not just at the time they appear before the Court, can come within the ambit of the section.

Reasons are now required for any orders pursuant to sections 32 and 33. Section 32A was added to allow for the treatment provider to any person conditionally released to report any failures to comply to Probation and Parole or Juvenile Justice so that breach reports can be prepared for the court. Section 34 was repealed. Application can no longer be made for the Magistrate who has previously heard and ruled on a matter to disqualify themself from continuing with the proceedings.

The opportunity to reduce limiting terms because a person found unfit has no ability to plead not guilty and attract a utilitarian discount on their sentence was passed by. So too was the opportunity to remove the role of the Minister of Health in authorising the release of forensic patients. Duncan Chappell of the Mental Health Review Tribunal has pointed out there is a marked disparity between recommendations for release of forensic patients (conditionally and unconditionally) and those actually approved by the Minister for release. In recent years only three forensic patients have been released and all of them were deported immediately! D Chappell, Spoiling the Governors Pleasure, paper presented to the Public Defenders Conference 14 May 2005.

Criminal Procedure Amendments (Prosecutions) Act 2005 - commenced 21 September 2005

Sections 16 and 47 Criminal Procedure Act 1987 have been changed to validate indictments signed by private legal practitioners. The amendment overcomes the results of the decision in R v Halmi [2005] NSWCCA 2 and R v Janceski [2005] NSWCCA 281 which held that where a private practitioner had signed the indictment the trial and subsequent conviction was a nullity. The provisions are designed to operate retrospectively.

Workplace Surveillance Act 2005 – commenced 7 October 2005

The new Act allows for a Local Court order authorising surveillance of workplaces for the purpose of establishing whether one or more particular employees are involved in any unlawful activity. It makes it an offence for an employer to institute his or her own unsanctioned surveillance regime.

New Commonwealth Criminal Laws

A review of recent Commonwealth legislation reveals similar themes and trends to those in New South Wales. As in 2003 and 2004 the predominate theme has been the “war on terrorism”.

National Security Information (Criminal Proceedings) Amendment (Application) Act 2005 - commenced 21 March 2005

The amending Act ensures that the National Security Information (Criminal Proceedings) Act 2005 applies to any federal criminal proceedings whenever commenced, if notice is given by the prosecutor.

Crimes Amendment Act 2004 - commenced 6 July 2005

The amending Act makes minor changes to assumed identities provisions.

Criminal Code Amendment (Suicide Related Material Offences) Act 2005 - commenced 6 July 2005

The amending Act inserts sections 474.29A and 474.29B into the Criminal Code Act 1995 – it is now an offence to use or possess for use on a carriage service (i.e. the internet), suicide related material, which directly or indirectly counsels or incites committing or attempting to commit suicide. It must be shown that the material possessed with the intention that the material be used to counsel or incite committing or attempting to commit suicide.

A person is not guilty of an offence against the subsection merely by using the service to engage in public discussion or debate about euthanasia or suicide or to advocate reform of the law relating to euthanasia or suicide or if they do not intend to use the material concerned to counsel or incite committing or attempting to commit suicide.

Crimes Legislation Amendment (Telecommunications Interception And Other Measures) Act 2005 - commenced 6 July and 17 December 2005

The amending Act expands the definition of law enforcement officer in s. 473.1 in the Criminal Code Act 1995 and makes minor procedural changes to the Telecommunications (Interception) Act 1979.

Criminal Code Amendment (Trafficking In Persons Offences) Act 2005 - commenced 6 July 2005

The amending Act adds new provisions in Division 271 Criminal Code Act 1995 relating to offences elated to slavery, deceptive recruiting, trafficking in persons and debt bondage.

Anti-Terrorism Act 2005 - Schedule 1 - commenced 4 November 2005

The new Act amends Division 101 Criminal Code Act 1995 which relates to terrorism offences by further tightening definitions relating to acts preparatory to terrorist offences, even if those acts do not occur.

Law And Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 - Schedule 1 (Drug offences) commenced 6 December 2005, other provisions commenced - 8 November 2005

The Act consolidates and reformulates the commonwealth offences in relation to drug importation, possession and trafficking. They can now be found in Part 9.1 of the Criminal Code Act 1995. New offences are created.

A stated purpose is to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna 20 December 1988). It is said that the new provisions are not intended to exclude or limit the concurrent operation of any law of a State or Territory. The new law however purports to cover areas already covered by State legislation. This may carry important implications for States, which try to reduce the strict prohibition laws relating to drugs, and introduce harm minimisation measures such as injecting rooms. The other Schedules make minor procedural amendments to a variety of criminal provisions.

Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005 – commenced 15 November 2005

The new Act adds to the Crimes Act 1914 - Part IAE, and allows Video link evidence in proceedings for terrorism and related offences. It also makes other minor amendments to the Crimes Act 1914, Financial Transaction Reports Act 1988, Foreign Evidence Act 1994, Proceeds of Crime Act 2002 and the Surveillance Devices Act 2004.

Anti-Terrorism Act (No. 2) 2005 – commenced 15 December 2005 Schedule 1 changes the definition of “terrorist organisation” in the Crimes (Foreign Incursions and Recruitment) Act 1978, Criminal Code Act 1995 and the Customs Act 1901.

Schedule 2 makes some technical amendments to the Criminal Code Act 1995.

Schedule 3 makes changes to the Criminal Code Act 1995 and the Financial Transaction Reports Act 1988 relating to investigation of the financing of terrorism.

Schedule 4 makes provision for control orders and preventative detention orders.

A new Division 104 Criminal Code Act 1995 allows a court to put obligations, prohibitions and restrictions on a person by way of a control order for the purpose of protecting the public from a terrorist act. A senior AFP member must have reasonable grounds to believe that the order would substantially assist in preventing a terrorist act or that the person to be subject to the order has provided training to, or received training from, a listed terrorist organisation. They require the Attorney-General’s written consent.

Division 105 Criminal Code Act 1995 now allows for preventative detention orders.there are reasonable grounds to suspect a person:

will engage in a terrorist act; or


a. possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
b. has done an act in preparation for, or planning, a terrorist act; and
Consequential amendments are made to the Administrative Decisions (Judicial Review) Act 1977.

Schedule 5 allows for changes to the Crimes Act 1914 to give police powers to stop, question and search persons in relation to terrorist acts. Powers include making “prescribed security zones” (s.3UI).

Schedule 6—makes more changes to the Crimes Act 1914 allowing for the AFP to obtain by demand and compel information and documents in relation to suspected terrorist offences.

Schedule 7 introduces the crime of “sedition”, (s. 80.2 Criminal Code Act 1995). Other changes are made to the Crimes Act 1914, Migration Act 1958 and the Surveillance Devices Act 2004.

Schedule 8 amends the Aviation Transport Security Act 2004 to allow for optical surveillance devices at airports and on board aircraft.

Schedule 9 makes changes to the Financial Transaction Reports Act 1988, Proceeds of Crime Act 2002, and the Surveillance Devices Act 2004.

Schedule 10 amends some of ASIO’s powers under the Australian Security Intelligence Organisation Act 1979. Customs Act 1901, Customs Administration Act 1985 and the Migration Act 1958.

As you may expect no powers were limited but extended.

Conclusion

In 2005 as must now be expected, no State agencies had their powers limited and no penalties were decreased. No mention was made of protecting basis human rights. No mention was made of the 9,100 prisoners now in NSW gaols or the fact that over 2000 of them are on remand, innocent until proven guilty.

It is clear that out legislators believe that we are in dire need of protection and that the passing of new laws and giving state agencies almost unrestricted powers to enforce them is the only way to prevent crime.

The new guiding principles for protection of individual rights is not fear of state power but rather a steady move to ensuring that everything not forbidden - is compulsory!