Public Defenders

Criminal Legislation 2004


Written by Andrew Haesler
Barrister & Public Defender
February 2004

Last year saw some slight slackening off on the introduction of new criminal legislation in New South Wales. The Government took breath. They needed to given the number of changes, such as mandatory minimum terms, introduced to Parliament in 2002 and commencing in 2003.

At last year's Criminal Law day I reviewed those new laws These are set in my paper for last year's Criminal Law Day ' Be Afraid: Be Very Afraid' . The dire predictions in that paper have come true. Despite the new laws crime rates have not fallen. More people are in gaol, particularly on remand, at great cost to themselves, their families and the community.

That is not to say there was nothing new in 2003. While ever there is a vote to be gained for appearing 'tough on crime'we will have 'new'legislation designed to 'protect the community'That this new legislation seems to have had no impact on crime rates, transgresses basic and fundamental rights and means more gaols rather than hospitals or schools the community is not of particular concern to our political masters. It is the appearance of doing something rather than the results, which are important. We can expect more 'reforms'driven by populist competition between the major parties as the 2006 election comes around. Perhaps I am too harsh, after all we can't expect our politicians to not act politically can we?


The Bail Amendment Act 2003 commenced on the 22 August 2003. Three important new provisions were introduced:
1. Bail for those accused of murder may now only be granted in 'exceptional circumstances'The Attorney General noted in introducing the Bill that ' Exceptional circumstances are not defined but'might include cases involving a battered wife or a strong self defence case or a weakly prosecution case... where the defendant is in need of medical attention or poses no further threat or the community'(Hansard L.C. 24/6/2003 p.1887) (new s.9C).
2. Similarly, bail for repeat 'serious personal violence offences'will only be granted in exceptional circumstances (new s.9D).
3. Police or the DPP can get a stay of up to 3 days of any decision to grant bail to a person accused of a 'serious offence'to allow for an appeal to the Supreme Court (s.25A).

Section 32 (3) Bail Act 1978 was also amended to make it clear that the rules of evidence do not apply to determinations of grants of bail (from 8/7/2003) ( Crimes Legislation Amendment Act 2003).

The penalty in s.43 for abandoning or exposing a child was increased from 2 to 7 years (from 14/2/2004). ( Crimes Legislation Further Amendment Act 2003).

Sexual Offence Laws: Distinctions between sexual offences committed against men and women in the Crimes Act 1900 were removed by the Crimes Amendment (Sexual Offences) Act 2003 which commenced on the 13 June 2003. Some penalties were increased (s.66V), specific offences against males were repealed (ss.78G-78T). The wording of other offences were rationalised and a standard age of consent of 16 years introduced.

Importantly the defence of mistake of age in s.77(2) Crimes Act was repealed. The repeal now means there are no mistake of age provisions in the Crimes Act. Previously the common law defence was specifically restricted to the specific fact situation in s.77 (2)- where a mistake was made in relation to a girl aged 14 or 15 only. That restriction has been removed. The common law defence of honest and reasonable mistake can now be presumed to operate. It is now arguable that a mistake of age based on an honest and reasonable belief that the other person involved was 16 or over will afford a defence to sexual offences where consent is not an issue, applying the principles noted in Proudman v Dayman (1941) 67 CLR 536.

Firearms: New offences relating to firearms were introduced into the Crimes Act (from 12 December 2003) by the Firearms and Crimes Legislation Amendment (Public Safety) Act 2003. Section 93GA provides for a maximum penalty of 14 years if you fire at a dwelling or building with reckless disregard for safety. Section 93I has a maximum of 10 years for unauthorised possession of an unregistered firearm in a public place (14 if a pistol or prohibited firearm). Section 154D provides for up to 14 years for stealing a firearm.

A number of new offences were also added to the Firearms Act1996 including, section 51BB unauthorised sale of a firearms on an ongoing basis (20 year maximum penalty). The time period for sales on an ongoing basis is 12 months. Only 3 sales during this period need be made for the 'ongoing supply'provision to operate (s.51B).

Nicolas Cowdery QC, the Director of Public Prosecutions has already spoken to you about recent developments in sentencing. I have restricted my comments to recent legislative changes.

Suspended Sentences: Following the introduction of mandatory minimums and the changes to s.44 See my paper ' Be Afraid; Be Very Afraid'and two papers in the Judicial Review Vol. 6 No3 (Sept. 2003) Reforms to Sentencing Laws by Peter Johnson SC and Criminal Law Update by Justice Howie. only a little tinkering has taken place. Another attempt was made to get around the decision of the Court of Criminal Appeal in Gamgee (2001) 51 NSWLR 707 which allowed for partial suspension of sentences. Section 12 Crimes (Sentencing Procedure) Act was amended again in another attempt to ensure that a court can only suspend the whole of the sentence. (from 8/7/2003) ( Crimes Legislation Amendment Act 2003).

Victims: Section 30A was added to allow victims of crime to read their Victims Impact Statements to the court. The victim is not sworn. It would be a brave defence counsel who cross-examined. The statement is however something that could be 'taken into account on sentence'see Wieniger v The Queen [2003] HCA. A VIS can be relevant to a courts ultimate sentencing decision. For example s.21A (2) Crimes (Sentencing Procedure) Act allows a number of factors relating to victims to be taken into account. S21A(2) 9a)(g) (l) Crimes (Sentencing Procedure) Act VIS's are still subject to a restriction that in homicide cases. They cannot be used to aggravate the criminality of the offence or increase the sentence although they may still be read. Previtera (1997) 94 A Crim R 76 & Bollen (1998) 99 A Crim R 510.

Periodic Detention: Section 65A Crimes (Sentencing Procedure) Act prohibits periodic detention if a person has previously served imprisonment for more than six months. After this matter was raised in last year's talk I have been asked if there is any way around this restriction. The simple answer is 'no'I also have been asked what was the rationale for the change. The simple answer here is that there is no acceptable answer. The official line was set out in the second reading speech as:

'I now turn to proposed amendments to the Crimes (Sentencing Procedure) Act 1999. The Department of Corrective Services has advised me that in recent years there has been a significant shift in the type of offender being sentenced to imprisonment by way of periodic detention. There is now a significant "gaol culture" within periodic detention centres due to the sometimes lengthy periods of full-time custody many detainees have previously served. The Government believes that periodic detention is not an appropriate sentence for hardened criminals, and that the periodic detention scheme can be improved if unsuitable offenders are excluded from it'. (Legislative Assembly on the 28 June 2002 by Mr Gaudry (Newcastle), Parliamentary Secretary).

Section 65B Crimes (Sentencing Procedure) Act was added to stop periodic detention being given for most sexual offences. Again, a populist move. Prior to the change such sentences had been rare Less than 10 and in no cases had they been held to be inappropriate by the CCA.

Magistrate's Jurisdiction: The most significant change has in been the lifting of restrictions on Magistrates powers to accumulate sentences and the jurisdictional limit of the Local Court. Section 58 Crimes (Sentencing Procedure) Act was designed to ensure that in the Local Court Magistrates could only accumulate two sentences; no more and that such sentences could be accumulated to a maximum of 3 years. This brake on the sentencing powers of Magistrates has, as of 14 February 2004, been removed by a new s.58. 58 Limitation on consecutive sentences imposed by Local Courts
(1) A Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.
(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.
(3) This section does not apply if:
(a) the new sentence relates to:
(i) an offence involving an escape from lawful custody, or
(ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and
(b) either:
(i) the existing sentence (or, if more than one, any of them) was imposed by a court other than a Local Court or the Children's Court, or
(ii) the existing sentence (or, if more than one, each of them) was imposed by a Local Court or the Children's Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began.
(4) In this section:
existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).
sentence of imprisonment includes an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

Magistrates can now accumulate as many sentences as they like up to a maximum of 5 years Crimes Legislation Further Amendment Act 2003.. These provisions apply to all offences except those where proceedings were commenced before 14 February 2004. See Schedule 2 Crimes (Sentencing Procedure) Act 1999. Inserted by Schedule 2 Crimes Legislation Further Amendment Act 2003. The restrictions on maximum penalties still apply. Sections 267 & 268 Criminal Procedure Act 1986. This amendment is likely to have a significant impact amount of time spent in gaol by offenders with multiple matters coming before the Local Court. Practitioners in their negotiations with the DPP and police will need to reassess both the benefits of keeping indictable matters in the Local Court and the use of the Form 1. A thorough understanding of the principle set out in Pearce v The Queen (1998) 194 CLR 610 will also be necessary. Pearce v The Queen.Pearce requires the imposition of a separate sentence appropriate to each individual charge to which a person pleads guilty.
'To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error . A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality'(McHugh, Hayne and Callinan JJ at [45]).

Parole: The Crimes Legislation Amendment (Parole) Act 2003 made some changes to the to the Crimes (Sentencing Procedure) Act to allow for inclusion of parole supervision orders in parole orders made by courts (s.51 (1A) and for the court to expressly state when a person is not to be subject to parole conditions (s.51 (1AA)). Other changes were made to require the Parole Board to give reasons for its decisions (s.131A Crimes (Administration of Sentences) Act 1999).

Bonds: Section 98 Crimes (Sentencing Procedure) Act was also amended to allow for breaches of bonds to be dealt with in higher court (from 8/7/2003) ( Crimes Legislation Amendment Act 2003).

New Developments in Sentencing: Repeal of s. 16GCrimes Act 1914 (Commonwealth): In a surprise move the Commonwealth repealed s16G as of 16 February 2003. The section allowed for the fact that remissions were no longer granted in NSW to be taken into account. A reduction in sentence of about 1/3 usually resulted. I dealt with the repeal in my 2003 paper. The CCA have yet to resolve the issue of how the repeal is to be handled by sentencing courts. There are still two conflicting approaches. The first as advocated by Justice Howie The Judicial Review Vol. 6 no.3 at p.39
'[W]ith the repeal of s 16G... the discount of about one-third previously applied for the lack of remissions is no longer applicable and the old sentencing statistics need to be considered with this in mind. In order to consider the range of sentences without the discount under s 16G it is necessary to increase the sentencing range by 50 percent. For example, if the range of sentences was 6 years to 8 years with the 16G discount, the range without the discount will be 9 years to 12 years'.
His Honour's view is similar to that presently pressed by the Commonwealth DPP and has been applied by a number of District Court Judges.

The second, the Haesler, view is that the section has no part to play in sentencing at all. It would wrong to say 'before the repeal I would have given x less 33% now I must just give x'. Rather the court must simply assess all remaining and relevant sentencing factors and sentence accordingly. Although a judge may look to a pattern of sentencing in relation to commonwealth matters the CCA and High Court have both indicated that references to a 'range of penalties'is not generally appropriate (See Nai Poon [2003] NSWCCA 42 and Wong v The Queen (2001) 185 ALR 233). It would thus be wrong, as Justice Howie seems to suggest, to simply increase the range by 50%. All the repeal does is remove an artificial restriction on the available maximum. This does not means sentences must go up across the board by 50%. Sentences imposed prior to the repeal were not manifestly inadequate because of 16G. There is no rationale reason for them to rise after the repeal. The argument will be tested in an appeal of Studenkin listed before the CCA on 7 May 2004.

Sentencing Children & Principles of Sentencing: The High Court has granted special leave to appeal in two important areas. In G.A.S. v The Queen (M168/2002) and S.J.K. v The Queen (M177/2002) the Court will consider the extent to which the DPP is restricted on appeal by charge negotiations with child defendants at first instance. Although leave was not given on the issue whether rehabilitation is the primary purpose for sentences imposed on children. This issue may still arise. In Markarian v The Queen (S85/2003 ) general sentencing principles in relation to Crown appeals, starting points and the mathematical as opposed to intuitive synthesis approach to sentencing will be considered.

Section 5F Criminal Appeal Act 1912, gives the DPP a right to appeal interlocutory decisions. It has been amended to allow for appeal against rulings on admissibility of evidence that substantially weaken the prosecutions case (s.3A). 3A 'The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case'. Its effect is to allow immediate challenge to rulings that would otherwise lead to a verdict of not guilty by direction.

When the CCA quashes or varies a sentence on appeal it can now quash or vary other sentences that were passed at the same time (s.7 (1A) Criminal Appeal Act 1912).

The strict time limits in section 10 of 28 days for filing appeals still apply however the requirements for requesting an extension of time are now subject to the Criminal Appeal Rules. The procedure for filing a Notice of intention to Appeal, having submissions and grounds within a six-month period continues.

A party against whom a costs order has been made can appeal to the CCA. Sections 5AA to 5AC have been amended to allow for appeals where the application for a costs order has been dismissed.

The consolidation of criminal legislation into a number of discrete areas continued with most criminal procedure provisions from the Crimes Act and the now repealed Justices Act being transferred to the now renumbered and reorganised Criminal Procedure Act. Few substantive changes were made. The most important procedural change being the commencement of proceedings by Court Attendance Notices.

A number of new provisions relating to costs before Magistrates were introduced. Section 118 allows for orders that either party pay the costs of an adjourned committal if their conduct was 'unreasonable'Similar provisions apply for summary hearings (s.216).

The Criminal Procedure Act now contains all the provisions relating to committals previously found in the Justices Act. These were not changed to any substantial degree. That being said the Crimes Legislation Amendment Act 2003 did recently make a substantial change; preventing a Magistrate from making any order for the attendance of a child complainant in a prescribed sexual offence if the witness is still under 18 and was under 16 at the time of the earliest offence to which the proceedings relate (ss.91 (8) & 91(9). I question whether this change has been thought through. Often it is not only the defence but also the DPP and the Court that require attendance of a child witness. If the evidence in statement (including video) form is insufficient or if identification evidence is required failure to call the witness may result in the dismissal of the charges for want of evidence. There was simply nothing to suggest the existing and stringent rules for the calling of child witnesses in ss. 91 and 93 were being abused. Often there were substantial, special and compelling reasons for the child witness to be called.

The Crimes Legislation Further Amendment Act 2003 also made some minor amendments to s314 to remove ambiguity about the press' access to documents filed in court and to make some changes to Table 1 Schedule 1 Criminal Procedure Act 1989. following changes to sexual offence laws noted above. Section 66C(3) offences - sexual intercourse with a child aged 14 to 16 can be dealt with summarily unless either side elects to go to the District Court.

A magistrates powers to deal with contempt in the face or hearing of the Court are now the same as those of the District Court (s.27A Local Courts Act).

Children can now give evidence by close circuit television and have their evidence in chief given in the form of a recorded (video and/or audio) interview with police and other investigators. Recent amendments now say that a child is not to be present in court or visible by some other means when their evidence is being played to the Court unless they choose to be there (s.11 Evidence (Children) Act 1987). I am driven to ask, 'What is exactly is being hidden here? What is being protected'?

Section 15A allows a transcript of the evidence to be made available to a jury.

The Wood Royal Commission recommended that all police powers be consolidated in one Act. This has now been done. Although a 2002 Act, the Law Enforcement (Powers and Responsibilities) Act 2002 has not yet commenced. Although scheduled to commence in April this year it appears that the Police Service have asked for its commencement to be delayed until 2005. Despite not having commenced the Act has already been amended.

The Law Enforcement (Powers and Responsibilities ) Act 2002 is a fairly comprehensive summary of police powers. Here is a brief outline A more comprehensive summary can be found on the Public Defenders website in my paper Police Powers 2004.      

Part 2: Powers of search and entry: Sections 9 and 10 are said to codify the common law powers of search and entry. The Second Reading Speech states expressly that there is no extension of police powers and section 9 only codifies the existing common law powers of entry (Spiers para.6) They appear much broader. Section 9 allows entry to premises if there has or has been threatened a 'breach of the peace'to end or to prevent the breach. The term 'breach of the peace'is not defined. It is a term replete with uncertainty. It can and will be interpreted as meaning almost any offence. Is swearing a breach of the peace? Is a noisy stereo? Any breach of public order could be construed as a breach of the peace.

Part 3: Powers requiring disclosure of identity: Police powers to require a person to disclose their identity are presently set out in s.563 of the Crimes Act. They allow for police investigating an indictable offence to require a person to state their name and address in certain circumstances. Sections 11 to 13 reproduce the provisions of the s 563 of the Crimes Act 1900.

Part 4: Search and seizure powers: At present police can use a number of different legislative provisions to search if they have a specific purposes. The equivalent provisions in the Crimes Act 1900, the Summary Offences Act 1988, and the Police Powers (Vehicles) Act 1998 are now in Part 4. Those in the Drug Misuse and Trafficking Act 1985 were not transferred.
Although essentially a codification there are three important new provisions:
1. Specific safeguards and rules designed to preserve privacy and dignity and govern strip-searches (ss.32 & 33). As the Attorney noted in the Second Reading Speech: 'Section 32 incorporates a number of safeguards intended to ensure that a police officer conducting any search has regard to the searched person's right to privacy and maintenance of dignity throughout a search.
The police officer must comply with the safeguards set out in section 32, unless it is not reasonably practicable in the circumstances to do so. What is reasonably practicable in the circumstances will of course be dependant on the individual circumstances.
These safeguards require the officer
* To inform the person of the nature of the search,
* Request their cooperation,
* Conduct the search out of public view and as quickly as possible,
* Not to question the person searched at that time in relation to a suspected offence'.
2. A new power to search any person arrested and taken to a police station (s23). This covers a perceived gap in the existing law. There is at present no specific power to search a person arrested for a breach of bail or detained under part 10A but not formally arrested. There are different powers to search at arrest (s.23) and at the police station (s.24).
3. A three tiered scheme for frisk, ordinary or strip searches Frisk, ordinary and strip searches are defined in s.3 LE (PR). based on the Crimes Act 1914 (Comm.).

The existing powers relating to searches of vehicles and set up roadblocks are reproduced in Division 5 of Part 4. Section 37 (3) goes further. It allows for an officer to establish a roadblock without authorisation if the need to do so is serious or urgent. Division 6 of Part 4 reproduces the powers to search vessels and aircraft found in the Crimes Act 1900 and the Drug Misuse and Trafficking Act 1985.

Part 5: Search and Seizure with a Warrant: These provisions re-enact in a reorganised format the Search Warrants Act 1985 and ss. 357EA and 578 Crimes Act 1900. The Search Warrants Act itself is under review and the LE (PR) Act provisions may change. For example part 3A of the Search Warrants Act although passed has not commenced. It has not yet been incorporated into LE (PR). These provisions relate to the detention of persons at the scene while a warrant is being executed, videoing of searches, the Application of Part 10A Crimes Act and safeguards to be afforded to those under restraint.

Part 5 also contains a provision allowing for the issuing of a Notice to Produce instead of a search warrant. Under the new provisions, where there are reasonable grounds to believe that an authorised deposit-taking institution holds documents that may be connected with an offence, such as fraud or money laundering, committed by someone else, an authorised officer may issue a notice to produce if satisfied that there are reasonable grounds for suspecting that the institution holds the documents and the institution is not a party to the offence.

This practical measure will obviate the need for the police when seeking information from large organisations, such as Banks, to specify the material they wish to 'search'and demand its production rather than trawl through a mass of material in order to find what they are after. The Notice to Produce provisions in the Act do not replace search warrants. Police may apply for either a Notice to Produce or a search warrant, depending on the circumstances. The scheme also address the issue of privilege. See Spiers Para. 18Section56 (2) provides that if police wish to proceed with enforcing a notice to produce where an issue of privilege has been raised, the officer must, as soon as reasonably practicable, apply to a Magistrate for an order to access the document. The Magistrate is provided with discretion to make a number of orders in respect of access to the documents.

Part 6: Search and Entry Powers relating to Domestic Violence: The existing Part 15A Crimes Act provisions are reproduced. This area is under review by the NSW Law Reform Commission. NSW Law Reform Commission, Discussion Paper 45 2002

Part 7: Crime Scenes: These provisions are new and have the potential to radically expand police powers. They allow a police officer to establish a crime scene if police suspect a serious indictable offence (a crime where the maximum penalty is 5 years or more) or a traffic accident has occurred. They give police extensive powers over the scene. The 'safeguards'in Part 15 offer little protection from arbitrary interference with people and their property.

Crime scenes can be established and crime scene powers exercised over public places without the need for a warrant (s.89 (2)). The new provisions allow for two types of crime scene for non- public places 'of any kind' S.89 (1). The first can be declared by an officer at the scene and lasts for up to three hours. The second, which can be an extension of the first, can only be established after a crime scene warrant is issued by a Magistrate. If a crime scene is established without warrant police can exercise any of the powers set out in section 95(a) to 95(f): These include the power to:
* Direct a person not to enter and prevent a person from entering;
* Direct a person to leave or remove a person who fails to comply with such a direction;
* Prevent a person from removing evidence or interfering with the crime scene, and for that purpose detain and search the person;
* Prevent a person from removing evidence or interfering with the crime scene;
* Remove obstructions from the scene.

Once a Crime Scene warrant is issued and executed the police may exercise all the above powers and:
* Perform any necessary investigation, including searches and inspections;
* Conduct examinations or processes;
* Open any thing that is locked;
* Take electricity gas or other utilities;
* Take photographs and conduct searches;
* Seize things that may be evidence of the commission of an offence;
* Dig up anything;
* Remove walls, ceilings, floors or panels of vehicles; and
* Perform any other function reasonably necessary.

Part 8: Powers relating to arrest: Part 8 re-enacts the arrest provisions found in the Crimes Act 1900. The Attorney's Second Reading Speech is quite blunt ' Arrest should be a matter of last resort'. 'The provisions of Part 8 reflect that arrest is an extreme measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the most invasive way of securing the accused person's attendance at Court.
Section 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this section would not, of itself, invalidate the charge. Sections 107 and 108 make it clear that nothing in the Part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution, or summons, or another alternative to arrest. Arrest is a measure of last resort'. Arrest should continue only as long as absolutely necessary.

Part 9: Investigation and questioning: Part 9 re-enacts the provisions of Part 10A of the Crimes Act 1900. This whole scheme is presently under review.

Part 10: Other powers relating to persons in custody: Part 10 re-enacts the law in relation to taking identification particulars in ss.353, 353A, 353AA and 353AB Crimes Act 1900. There are some minor differences. The officer in charge of the station is no longer required to take the particulars.

Part 11: Drug Detection powers: Part 11 re-enacts without amendment legislation in relation to powers to search drug premises, to use drug detection dogs, and searching for internally concealed drugs. The Police Powers (Internally Concealed Drugs) Act is now Division 3 of Part 11.

Part 12: Powers relating to vehicles and traffic: Part 12 re-enacts a number of police powers now found in the Road Transport (General) Act 1999 and the Road Transport (Safety and Traffic Management) Act 1999. There is an extension of police powers in section 189 - power to prevent driving by persons who are under the influence of alcohol or other drugs. Using LE (PR) police may take action to disable a vehicle if the officer reasonably suspects that the person is likely to abscond before undergoing a breath test.

Part 13: Use of Dogs to detect firearms and explosives: Part 13 re-enacts sections 72A, 72B and 72C of the Firearms Act 1972 relating to the use of sniffer dogs to detect firearms and explosives.

Part 14 Power to give directions: The 'move on'powers in sections 25F and 25G Summary Offences Act are transferred to the new Act.  The Second Reading Speech notes that 'It is intended that under section 197, which sets out the powers of police officers to give directions in public places, that a police officer may be 'a person affected by the relevant conduct'for the purposes of issuing a direction'. As with a number of other new powers recently given to police these provisions are in need of urgent review as to their effectiveness. Safeguards are set out in Part 15.

Part 15: Safeguards: Safeguard provisions now found in the Crimes Act 1900, the Search Warrants Act 1985, the Summary Offences Act 1988 and the Police Powers (Vehicles) Act 1998 are consolidated in Part 15 of the Act. Section 201 requires police to give certain warnings and information b efore exercising their powers This was made clear by a recent amendment to s. 201 by the Crimes Legislation Further Amendment Act 2003/ and sets out when those requirements must be complied with. However ss.202 and 203 both note that the requirements need not be complied with if compliance is impracticable.

Part 16: Powers relating to Intoxicated Persons: The Intoxicated Persons Act 1976 is re-enacted.

Part 17: Property in Police Custody: Part 17 re-enacts provisions from the Summary Offences 1988 relating to the powers to confiscate and return knives and the like. Other provisions re-enact the
Criminal Procedure Act 1986 and Police Service Regulation 1990 in regard to holding and return of property in police custody.

Part 18:Use of force: Sections 230 and 231 authorise the use of force to in the exercise by police in their functions under the act and when making an arrest.

Part 19: Miscellaneous: This Part contains all those necessary extras such as savings, review and monitoring provisions.

In addition, we also have the Terrorism (Police Powers) Act 2002. The outrages in New York and Bali have provided the impetus for significant increase in police powers in addition to those found in the LE (PR) Act. I do not welcome them. They will have a significant impact on how the State seeks to govern and impose on its citizens in the future. The new changes warrant a Paper of their own.

The Act defines a 'terrorist act'and 'terrorist action'  It uses the same terms as the Commonwealth's The Security Legislation Amendment (Terrorism) Act 2002. They are extremely broad. The Act gives senior police the power to act without warrant against unspecified 'targets'Although terms such as 'reasonable cause'are used, in most cases only the concurrence of the Police Minister is required. The Act allows for the unprecedented and potentially dangerous intervention of a politician into operational policing. The powers police can exercise under the Act are almost unlimited and unreviewable.

The Act must be reads in conjunction with new Federal powers. The Terrorism (Commonwealth) Powers Act 2002 NSW ensures that the new Commonwealth provisions are made with full power and constitutional authority .

A legislative package was before the Commonwealth Parliament in June last year. This summary of the Commonwealth provisions is based in part on a paper Counter Terrorism Legislation Explained by Keith Holland presented to the College of Law on 14 June 2003 (No. 03/45). It was made up of six pieces of legislation.

The Security Legislation Amendment (Terrorism) Act 2002: The Act creates a range a new offence of 'terrorism'and related offences. It modernises the law of treason. Terrorism offences are now to be found in Part 5.3 of the Criminal Code Act, Crimes Act 1914. 'Treason'is redefined now extends to assisting an organisation involved in conflict with Australian Forces not just an enemy country and prohibits harm to the Governor-General and the Prime Minister as well as the Sovereign.

The Suppression of the Financing of Terrorism Act 2002: The main features of the Act include the creation of an offence directed at those who provide or collect funds to facilitate terrorists' activities. It requires that cash dealers report suspect terrorist related transactions to the Director of The Australian Transaction Reports and Analysis Centre. It includes a mechanism enabling the director of that Centre and others to disclose financial transaction reports directly to foreign countries and foreign Law Enforcement Agencies, Intelligence Agencies. It brings in of high penalties for providing assets to or dealing any assets of persons engaged in terrorist activities. A maximum penalty up to life imprisonment is provided.

The Criminal Code Amendments (Suppression of Terrorist Bombings) 200O: This Act inserts amendments to both the Criminal Code Act 1995 and the Extradition Act. For acts causing death or serious harm to a person strict liability applies to the nature of the place where the act is committed. That means there are no fault elements for this particular aspect to the offence and it is immaterial whether the person knows the nature of the place in which the offence occurs. The term 'lethal device'is broadly defined.

The Telecommunications Interception Legislation Amendment Act 2002 This Act allows extensive interception powers for law enforcement agencies investigating terrorist acts or offences.

The Border of Security Legislation Amendment Act 2002 establishes the processes for defining parts of international airports where access is restricted. It requires international airline operators to provide Customs with information about passengers and requires employers of workers in secure areas to provide information about their employees; it gives extensive powers to Customs to access passenger information held by private corporations.

The Australian Securities Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 only passed the Parliament late last year, following extensive negotiations between the Labor Party and the Government. It provides the exceptional powers to ASIO to obtain warrants to detain and question a person who may have information important to the gathering of intelligence in relation to terrorist activity. Persons can be detained up to seven days with their access to lawyers restricted amongst other obscure and draconian provisions.

In addition, Criminal Code Amendment (Terrorism) Act 2003I was passed. It is designed to ensure the constitutional integrity of the Commonwealth to pass counter terrorism laws, which are not presently covered by the Constitution by way of a reference of powers from the States.

A seventh Bill the Criminal Code Amendment (Terrorist Organisations) Bill 2003 is still before Parliament. If passes it will allow for the unprecedented proscription of organisations said to be linked to terrorism.

The 2003 amendments to sections 32 and 33 Mental Health (Criminal Procedure) Act 1900 have been thoroughly discussed by Professor Greenburg and Mary Spiers in their earlier paper. Where it appears to a Magistrate a person before them is developmentally disabled, has a mental illness or a mental condition section 32 allows for the mater to be dismissed without proceeding to finalise the matter, and the person released into care or to a place for assessment. Conditions may be placed. The Amendments introduce consequences for the failure to comply with any conditions of the order. A person can, within the next six months, be brought back to court if a breach of conditions is suspected and the proceedings recommenced or possibly a further s.32 order made.

Section 33 similarly refers to those who are mentally ill within the meaning of the Mental Health Act 1900. The new s.33 (1A) allows a Magistrate to make a mandatory community treatment order in relation to the person before them.

Another significant change was an amendment to section 39. Section 39 allows for the finding after trial that an accused is not guilty by reason of mental illness. Previously such a finding meant that the person had to be detained (generally in gaol or a mental hospital) until reviewed by the Mental Health Review Tribunal and a subsequent order by the Minister for Health. As a consequence a person could come to court on bail, no longer suffering the effects of their earlier mental illness, be found - not guilty'and then be detained indefinitely. Even with the best of efforts it could be months or years before they were eventually released. If they were not suffering an illness often the only place they could be detained was a gaol.


Double jeopardy: The Government has announced that the rule against Double Jeopardy is to be abolished. Although no particular problem arose in NSW, the decision of the High Court in Carroll v The Queen (2002) 77 ALJR 157, where the High Court overturned a conviction for perjury for a man who had previously been found not guilty of murder, provoked enough outrage for action. A draft Bill the Court of Criminal Appeal (Double Jeopardy) Bill 2003 was introduced and released for comment last year. Acting Justice Jane Matthews has recently reviewed submissions in response to the draft Bill. Her Report is with the Attorney. The Draft Bill proposed that acquittals be allowed to be re-opened in three circumstances:
1. Where there is fresh and compelling evidence
2. Where the acquittal appears to be tainted; and
3. Where the Crown appeal on the basis that there has been an error of law.

Although it is expected the Matthew's Review will recommend the introduction of more rigorous 'safeguards,'the new legislation in much the same form as the Bill is expected by the end of 2004.

Six Month Sentences: The Sentencing Council is looking at the abolition of sentences of imprisonment of under 6 months. However I fear that this may simply lead to an increase in sentences rather than reduction in gaol numbers.

There will be more. I anticipate that changes to bail laws and increased proscription of sex offenders will be introduced when next another outrageous crime is reported. We have yet to base our legislative reform program on any extensive results based analysis, so the expect the new provisions to be populist rather than based on any rigorous analysis of their likely effectiveness.

Some positive initiatives such as the Drug Court and Circle Sentencing and other intervention programs have been introduced. They are subject to careful evaluation. Others are simply 'evaluated'on the media response to the press release announcing them.

We have still to ask; 'where are we going with criminal law changes?'Until we do we will see piecemeal and contradictory responses the daily crisis put forward first as press releases and then ill-considered legislative 'reform'.

Meanwhile real structural reform languishes. Perhaps it's not sexy enough. One small advance could be the abolition of the vast number of theft, property and fraud laws in the Crimes Act and their replacement with some sensible and less archaic provisions as has occurred Federally, in Victoria and most recently South Australia.

Andrew Haesler
February 2004

Bail Act 1978 1
Crimes Act 1900 2
Sentencing: 2
Court of Criminal Appeal: 6
Criminal Procedure Act: 6
Evidence from Children 7
Police Powers 7
New Terrorism Laws: 11
Mental Health 13
Double jeopardy 14
Conclusion 14