Alister Henskens portrait
Alister Henskens portrait

Crimes (Serious Crime Prevention Orders) Bill 2016

Gun sitting on top of money

Ms GABRIELLE UPTON ( VaucluseAttorney General) (16:43:51): I support the Crimes (Serious Crime Prevention Orders) Bill 2016 and the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016. I am pleased to hear that the Opposition will back us in on these important bills, which fulfil the Government's election commitment to the voters of New South Wales during the 2015 election campaign.

These bills will continue to place pressure on serious and organised crime that occurs in our community. This is something all members of this House and the wider community should support. Organised crime by its very nature is insidious and preys on the most vulnerable people in our community. It attempts to legitimise crime by making it a business that exploits misery.

Mr ALISTER HENSKENS ( Ku-ring-gai ) ( 17:05 :23 ): Unfortunately, members opposite have read almost verbatim from a number of documents that have been propounded by the NSW Bar Association, which are seriously flawed. The initial response of the NSW Bar Association on 13 April 2016 to the Crimes (Serious Crime Prevention Orders) Bill stated wrongly that it was an unprecedented attack on individual freedoms and the rule of law. Since 2007 the laws of England, Wales and Northern Ireland have allowed the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions to seek serious crime prevention orders from a judge in circumstances where persons are convicted of a serious crime or if they are involved but not convicted of a serious crime.

The onus of proof is the balance of probabilities. These are the essential features of this bill. The laws of the United Kingdom were so successful in disrupting organised criminal activity that the Parliament of Scotland, after watching the United Kingdom laws in operation, last year introduced similar legislation. This bill is clearly not "unprecedented" as is alleged by the NSW Bar Association. Its precedence has been law in the United Kingdom since 2007. This bill is not an "attack" on the "rule of law" because a judicial process must be undertaken before a serious crime prevention order is made. The process is the same as obtaining an injunctive order in civil litigation. Injunctive orders in civil litigation have been part of the rule of law for hundreds of years.

It is not an "arbitrary … interference with the liberty of many thousands of New South Wales citizens" unless the NSW Bar Association is suggesting that the judges of this State will operate in an arbitrary fashion. It is unlikely that the bill is an interference with Australia's international obligation to fundamental human rights because it has not operated in breach of the United Kingdom's international obligations since it has been law in the United Kingdom since 2007. The contention that the bill "sets up a rival to the criminal trial system" by the NSW Bar Association is wrong and has been judicially rejected by appellate authority in the United Kingdom. In R v Hancox [2011] EWCA Crim. 102, the court, at paragraph 12, held:

Like other forms of preventative orders, a serious crime prevention order is not an additional or alternative form of sentence. It is not designed to punish.

The contention that the legislation is unconstitutional and beyond the power of this Parliament, relying on Kable's case in the High Court, is also dubious. Mr Hutley, SC, the President of the Bar Association, in an article responding to my opinion piece in the Australian made a number of points to which I will respond. First, he failed to deny that the Bar Association's nine-page submission and press release on 13 April was written by "nameless employees" of the Bar Association. Secondly, he asserted that the United Kingdom position is different because of its Human Rights Act 1998. However, as R v Hancox at paragraph 10 makes clear, the only constraint by human rights legislation in the United Kingdom is that any orders need to be "proportionate", that is "the interference with the defendant's freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk". The ordinary exercise of a judicial discretion undertakes an analysis of this kind without the necessity of human rights legislation and I am confident that the judges of this State will only grant orders in similar circumstances to the United Kingdom.

Finally, Mr Hutley has repeated the complaint in the 13 April Bar Association documents that the legislation was introduced without any consultation with the New South Wales Bar Association. With all due respect to Mr Hutley, this legislation was an election promise and although the Bar Association thinks it is self‑important, it is not more important than the citizens of this State and basic democratic logic would dictate that consultation was not necessary. As an acknowledgement of the veracity of my opinion piece, yesterday for the first time the Bar Association issued a document addressing the United Kingdom Act upon which this bill was modelled. I will briefly respond to the six points which are set out in that paper.

First, the Bar Association takes exception to the fact that a person acquitted of an offence can be subjected to a serious crime prevention order when such a provision is not in the United Kingdom legislation. But in the United Kingdom, although it does not have a similar provision, people who have not been convicted of an offence can still be subjected to a crime order. So the difference between the New South Wales legislation and the United Kingdom provision seems to be a recognition in this bill that there is a difference between the standard of proof in civil and criminal cases and it is possible that although someone has not been found guilty beyond reasonable doubt there may be sufficient evidence on the balance of probabilities to justify, not a punitive order as the Court of Appeal in England said, but a preventative order against the person. I also note that in any civil case, when a serious allegation is made against a person a higher standard of proof than an ordinary civil case is required—it is called the Briginshaw standard. It is highly unlikely that a defendant acquitted on the balance of probabilities would be able to be found to the Briginshaw standard of a civil case such to allow a serious crime prevention order.

The second matter that the Bar Association raised in its paper yesterday was that hearsay evidence would be permitted in New South Wales when it is not permitted in the United Kingdom. However, there are many exceptions to the hearsay rule in New South Wales even under our existing laws. The fact that a judge is acting on hearsay evidence will strongly influence the judicial discretion if that hearsay evidence is not of sufficient veracity to warrant an order. Again, the use of hearsay evidence will have only a limited difference from the way in which the legislation operates in the United Kingdom.

Thirdly, the Bar Association made a distinction between the New South Wales and United Kingdom legislation around the words "the reasonable grounds to believe", which I suggest is a distinction without any difference and not a valid point. Fourthly, the Bar Association said that the New South Wales legislation does not have non-limiting examples of the types of orders as appears in the United Kingdom legislation.

However, the flexibility given to judges should be admired and not criticised.

Fifthly, the difference between the class of applicants mentioned in the United Kingdom legislation and in this bill is not significant because in both the United Kingdom and New South Wales the most important protection of the rights of the individual is the fact that judges are the ones who will give the orders. Judges are not robotic officers required to make certain orders depending on the character of the applicant.

Sixthly, the Bar Association made the point that there is an express right in the United Kingdom legislation for third parties to make representations in proceedings if orders that are proposed to be made could affect them. Under the existing common law of Australia, decided in the Super League case and in other cases, third parties need to be taken into account when injunctive orders are made. I am confident that the courts of this State will apply that common law without the necessity for it to be expressly stated in this bill. For those reasons I commend the bill to the House.