Support and Opposition for Domestic Violence Bail changes
Civil Liberties’ lawyer Terry O’Gorman said the aptly described “extraordinary change”[1] proposed to the bail system reversing the onus of the proof and forcing alleged perpetrators to prove to a Magistrate or Judge that they should be given bail is unnecessary and would see alleged perpetrators spend many months on remand before their cases are heard, some of whom will be found not guilty.
“Denial of bail is a significant factor causing overcrowding in Queensland jails” Mr O’Gorman said.
Mr O’Gorman said that research sponsored by the Australian Criminology Research Council shows that over the last 5 years unsentenced prison numbers in Australia have increased by 81%. This trend has been properly described as socially irresponsible and unsustainable[2].
Mr O’Gorman said the existing Bail law which gave Magistrates powers to adjourn a bail hearing to allow the mental health of an accused to be comprehensively assessed could be extended to serious domestic violence offenders while still keeping the onus of proof to convince a Court that a domestic violence accused should be refused bail on the prosecution.
“To shift the onus of proof for bail release to an accused person is to further aggravate the significant, indeed huge, inequality of arms (resources) between the Prosecution and the Defence” Mr O’Gorman said.
“The overwhelming number of domestic violence bail applications are done by overworked and under resourced Legal Aid Duty Lawyers where often a whole squad of police have had many hours to put together a case overnight before a domestic violence accused first faces Court” Mr O’Gorman said.
Mr O’Gorman said that while the Teresa Bradford tragedy cannot and should not be ignored, one bail hearing that resulted in her alleged killer being granted bail does not demonstrate a systemic problem with the domestic violence bail system.
“False allegations of domestic violence are frequently made including to advance the Family Court cases of warring spouses. Shifting the onus of proof on domestic violence bail hearings will further aggravate the problem and cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped” Mr O’Gorman said.
By Terry O'Gorman
2 February 2017
[1] See Courier Mail, Thursday 2 February 2017 “Review to place onus on accused”.
[2] See Rick Sarre, Professor of Law University of South Australia – The Conversation – 23 January 2017. Note alsothe Australia wide figures are applicable to Queensland.
Consorting Laws
The observations outlined herein are taken from the Attorney-General's parliamentary speech when introducing the consorting laws. The Attorney-General's speech is referred to by the Courts in interpreting a new law such as consorting.
The consorting law makes it a criminal offence for a person to associate with two other people who have certain previous convictions. It is preceded by a warning to the person that continued association is a criminal offence. The new offence will apply only to adults, that is, people aged 18 years or over and will not apply to young people. A person must consort on two occasions with at least two people who are recognised offenders.
A recognised offender is defined to mean a person who has previously been convicted of an indictable offence punishable by a maximum penalty of five or more years imprisonment or to prescribed offences where the maximum penalty falls below five years but which have been identified as being associated with organised crime, such as riot.
In relation to the issue of warnings a person must first be officially warned, and at least one of those occasions of consorting must occur after the issue of the warning. The official warning can be given orally or in writing and must be given in relation to each convicted offender. If the official warning is given orally it must be confirmed in writing including by electronic means within 72 hours, otherwise the oral warning lapses and has no legal effect.
Warnings can be given pre-emptively. For example, the official warning can be issued by police without any consorting ever having occurred. But the person must then consort with those persons on two occasions post-receipt of the warning.
Warnings can also be given retrospectively. For example, where there is video footage uncovered that shows consorting.
The consorting can occur in public or in private and is not limited to physical association. The offence is sufficiently broad so as to capture any kind of communication, for example, over the phone, email or social media. There is no requirement that the consorting be linked to, or have any suspected link to, criminal activity in any way.
Certain types of consorting must be disregarded if the person can satisfy the Court on the balance of probabilities that the consorting was reasonable in the circumstances and that one of the following applies:
- Consorting with close family members;
- Consorting that occurs in the course of lawful employment;
- Consorting that occurs in the course of the provision of a legitimate and necessary health service;
- Consorting that occurs in the course of a person obtaining legitimate education;
- Consorting that occurs in the course of a person obtaining legal services; or
- Consorting that occurs in lawful custody.
The onus of proving that the act of consorting is one that must be disregarded and that it was reasonable in the circumstances falls to the person charged.
The offence is punishable by a maximum penalty of three years’ imprisonment and the offence is indictable but may be dealt with summarily on defence election.
The new consorting offence has warrantless stop, search and detain powers for police. Police are allowed to search a person they reasonably suspect has consorted, is consorting or is likely to consort with one or more recognised offenders. Where a police officer holds a suspicion they may also:
- Require the person to provide their name, address and date of birth;
- Take the person’s identifying particulars if necessary to confirm their identification;
- Give the person an official warning for consorting; and
- Require the person to move on from the place where an official warning has been issued.
Police also have been given a new power that where a police officer has given a person an official warning for consorting and the officer reasonably suspects that the person is consorting at the place with the recognised offender, the officer may require the person to leave and not return within a reasonable time of not more than 24 hours (a new form of move on power).
The move on power has a safeguard that provides the police cannot require the person to leave the place if doing so would endanger the safety of the person or someone else, for example, requiring the person to leave a vehicle in which recognised offenders are passengers in circumstances where the person has no access to alternative transport.
The effectiveness and use of the offence and associated police powers have to be reviewed by a retired Judge within five years.
It is important that anyone who is subject to the exercise of these new consorting laws and considers they have been unfairly dealt with sends a brief note to Robertson O’Gorman Solicitors as we are compiling a dossier on the use of the consorting powers for the purpose of the review in five years.
By Terry O'Gorman
23 January 2017
International Criminal Law Congress 2016
15th International Criminal Law Congress 2016
12 – 16 October 2016, Adelaide, South Australia
I became involved in civil liberties in Queensland as early as 1971 when the Springbok racially selected South African Rugby Team toured Australia. There were many civil liberties controversies between 1971 and 1977 that are too numerous to account here. There then followed the 1977 street march ban introduced by the same Bjelke-Petersen Government. Without any consultation or prior announcement the Premier came into the Queensland Parliament one afternoon and amended the Traffic Act. The then existing law which gave an appeal to the Magistrates Court from the police refusal to allow a permit for a political street process was changed so that the ‘appeal’ lay from the Superintendent of Traffic who refused the permit to the Police Commissioner. That same Police Commissioner was later jailed in the 90s for endemic corruption.
It was no surprise that not one permit was granted. The height of the absurdity that became the 1977 street march ban occurred one afternoon in October in 1977 when 400 people were arrested in one afternoon simply for walking around the block from the city square. The arrests were for taking part in an illegal street march. Among the lawyers who walked out of the watchhouse the next day was Wayne Goss who later became Queensland’s premier and Matt Foley who became Attorney General in the Goss Government.
There then followed the 1987 to 89 Fitzgerald enquiry which revealed endemic police and political corruption. A major overhaul of the police service resulted along with some changes designed to make the Queensland political system more accountable.
We saw the return to Bjelke-Petersen’ism in the Newman Government in the period 2012 to 2015. The absurdly named VLAD (Vicious Lawless Association Disestablishment Act) and a number of extreme provisions including mandatory minimum of imprisonment of 25 years on top of a sentence that a person was arrested for if the offence, essentially, was committed by three or more persons with a common and organised purpose.
The DPP - Over the last 30 years and into the future
DPP Offices were set up throughout Australia from 1983 to the early 90s starting first with Victoria, the Commonwealth and then quickly followed by other states. The role of the DPP was stated to be to take the politics out of the decision to prosecute. While this has been largely achieved over the last 30 years the independence of the Office of the Director of Public Prosecutions has been far too compromised by timidity caused by fear of the media.
It has been said that the Prosecutor’s importance within the criminal justice system cannot be overestimated.
If the decision to prosecute Socrates was made by a trio of private citizens namely, a politician, a poet and a rhetorician and in another well-known trial 400 years later Pontius Pilate first found no basis for a charge against Jesus but later left his prosecution to a crowd, the prosecutorial discretion and decisions to prosecute under the Australian DPP model has little accountability.
It has been said that ‘it is something of an oddity that the Prosecutor has few limitations and is subject to little scrutiny’.
Judicial Review of prosecution decisions is not available. So said the High Court in Maxwell’s case in 1996.
A prosecutor’s decision whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and decisions as to the particular charge to be laid or prosecuted are not open to review.
Further, the office of the DPP also has its own problems. The role of the DPP is an appointed one and while the office bearer in theory has independence, at least for the duration of the appointment, the term of the appointment is not consistent throughout Australia.
What for the future for the Office of the DPP. It really is an absurdity that an acquitted accused can in certain circumstances recover his costs in proceedings before a Magistrate but, even with the exception of the cost regimes operating in at least 2 states, effectively cannot recover his costs if acquitted by a jury in the relatively infrequent number of cases where a higher court prosecution is discontinued.
Any experienced defence practitioner knows that the only brake that exists in relation to unmeritorious prosecutions in the Magistrates Court is the threat of a costs order. No such brake, ironically, exists in respect of a DPP Prosecutor in relation to Judge and Jury matters. This must change.
Crime Commissions
Most Australian jurisdictions have Crime Commissions of one sort or another.
A frequent criticism of Crime Commissions is that their work is inimical to a fair trial. It has been said that the coercive power of these agencies together evidence powers denied to the Police Services give crime commissions and ultimately the prosecution unfair advantage.
It is instructive to observe Mr O’Regan who himself would later become the Chair of the Queensland Criminal Justice Commission noted that “none of the Commission’s powers should be exercisable unless judicial approval has first been obtained and in that regard he noted that that was the opinion of Tony Fitzgerald QC who headed the landmark Fitzgerald enquiry in Queensland from 1987 to 89 where Fitzgerald said:
- “The Official Misconduct Division would have access to more powers than most investigative bodies. Each such power should only be able to be used by any member of the Official Misconduct Division on judicial authority. The standard of control on the exercise of those powers must be unreservedly high”.
Considering how much power have been given to Crime Commissions around the county since that time, Mr O’Regan’s enforcement of Mr Fitzgerald’s indication of the need for judicial authority before Crime Commissions exercise their coercive powers seems now somewhat extraordinary. But it shows how far we have travelled in the last 30 years in terms of the extraordinary powers which now are exercised by Crime Commissions around the country.
How far we have travelled down the road of giving Crime Commissions excessive powers is reflected in two recent incidents.
The public but very necessary controversy between ICAC Chairman Megan Latham and ICAC Inspector Devine and the related discussion about people declared guilty by ICAC seeking Clearance Certificates in the Supreme Court demonstrates the very real problem posed by Crime Commissions in this country.
The fact that a very senior public servant in New South Wales lost his job and his career because of a so called public finding against by ICAC only to be acquitted on trial demonstrates the necessity to reign in Crime Commissions.
It is instructive to observe only 15 months ago a damning victorious systemic misconduct inside the specialist covert operations unit of Western Australia’s Corruption and Crime Commission emerged from an investigation by the Commissions Parliamentary Inspector.
The report by ex-Supreme Court Judge Michael Murray QC catalogued 23 allegations of misconduct ranging from theft to improper interference with a police investigation.
The allegations against the officers included false record keeping, unauthorised use of Commission equipment, misuse of an assumed identity, failure of an officer to disclose he had been arrested and convicted for possessing a prohibited drug, improper purchase of 2 motor vehicles and unlawfully obtaining a driver’s license under an assumed identity.
The active and effective oversight roles by the relevant Parliamentary Inspectors over the New South Wales ICAC and Western Australia’s Corruption and Crime Commission needs to be replicated throughout Australia particularly in Queensland, Victoria and South Australia whose Parliamentary Inspectors in respect of the various Crime Commissions in those states appear to have been significantly less effective.
The increased policing role being carried out by Crime Commissions particularly through the Investigative Hearing process is a considerable cause for concern. Not only in a practical, if not in a legal, sense does the increasing police role impinge on the right to silence, in those states such as Queensland the Crime Commission forms a dual role of greater policing and undertaking complaints against police results in a seriously conflicted process.
Mandatory Sentencing
Most Australian jurisdictions have by now incorporated some form of mandatory sentencing into their overall sentencing regime. Whether in the form of fixed mandatory penalties, mandatory minimum standard non-parole periods or presumptive sentencing regimes (for example where an offender must serve a period of imprisonment unless there are exceptional circumstances).
In 1997 the Northern Territory introduced a ‘3-strike’ mandatory sentencing regime for property offences: 14 days imprisonment for a first offence, increasing to three months imprisonment for a second offence, and increasing one year for a third offence.
A number of people caught by that regime received penalties which were, objectively in any view, grossly disproportionate to the seriousness of their offending.
These are some examples:
- A 27 year old teacher convicted of unlawful damage (she disputed the quality of a hotdog at a fast food bar and poured water on a cash register). She paid in full for the damage caused and was sentenced to 14 days actual imprisonment.
- A 19 year old convicted of stealing alcohol worth $2.00 sentenced to 14 days actual imprisonment.
- A 24 year old Aboriginal mother with no criminal history convicted of receiving stolen property being one can of beer worth $2.50 sentenced to 14 days actual imprisonment.
- 22 year old convicted of stealing biscuits and cordial worth $23.00 sentenced to one year actual imprisonment.
- A 29 year old homeless Aboriginal man who had 2 previous minor property convictions of convicted of stealing where he wandered into a backyard when drunk and took a $15.00 beach towel from a clothes line sentenced to one year actual imprisonment.
In 1999 the Northern Territory amended the 3-strike regime to allow for sentencing alternatives in exceptional circumstances and the laws were appealed in 2001.
The Queensland’s Drug Misuse Act had a mandatory life imprisonment regime that applied until 1990. It ran for a period of 2 years.
The Labor Police Minister in abolishing the fixed mandatory sentencing regime said that “Judges were forced to sentence hopeless drug addicts to life imprisonment… many of the 21 people now serving mandatory life sentences in Queensland gaols are little more than hopeless drug addicts” with the abolition of the mandatory life sentence term all 19 prisoners serving life had the sentences reviewed. For example a female who’d been sentenced to life imprisonment for supplying, possessing and trafficking heroin was sentenced to mandatory life imprisonment and after the law was amended on review her sentenced was reduced to 4 years imprisonment.
Federally under the Migration Act mandatory sentencing is prescribed. In one people smuggling case where the sentencing Judge found that a crewman had been motivated by extreme poverty where he was earning about $60 a month as a fisherman in Indonesia and supporting his wife and daughter. He was approached by a man who offered him $1200 to take on a role in people smuggling. The sentencing Judge noted that the appropriate sentence would have been three years imprisonment with a non-parole period of 18 months but the accused in that case was required by the mandatory sentencing regime to be sentenced to at least 8 years imprisonment with a non-parole period of 5 years. The Judge in that case felt so strongly about the injustice caused that the Judge recommended that the Commonwealth Attorney General exercise his prerogative to extend mercy to him.
As a consequence of this case an agreement was reached between the Commonwealth Attorney General and the Director of Public Prosecutions that ‘a charging policy would prevail of avoiding offences carrying mandatory minimum sentences wherever that could be done”. Thus the sentencing function was, effectively, to be pushed down to prosecutors who are not publically accountable in a way that Judges are.
It is encouraging that in Frank Brennan’s speech early this week he noted that “it is good to see that the Australian Bar Association has pledged to join a national campaign to amend or remove all mandatory sentencing laws….”
Recently in the Melbourne Age John Silvester who is a former police officer and now a weekly columnist for The Age noted that at a time that the United States are moving away from mandatory sentencing Australian States are moving more in the direction of mandatory sentencing.
Nowhere is this more starkly illustrated than in Queensland. The previous LNP Government anti-bikie laws had mandatory sentencing of 25 years on top of the sentence a bikie was arrested for even if that sentence was a fine where the offence was committed by three or more people in the so called organised crime context.
The current Labor Government in Queensland has a bill before the Queensland parliament reducing that figure to 7 years. In the explanatory notes to this legislation it was conceded that a person might not receive jail for the base offence (the offence a person had actually been arrested for) but would still have to serve 7 years on top of the non-jail term if the offence was committed within the so called organised crime context.
Organised crime is very widely defined to effectively, refer to 3 people effectively committing a common purpose offence and it applies even to such offences as stalking.
Conclusion
This short and obviously selective review of parts of the landscape of the Criminal Justice system over the last 30 years presents a rather depressing picture.
Time Magazine observed in its October edition last year that 30 years ago 10% of California’s general revenue went to higher education and just 3% went to prisons. Today 11% goes to prisons and 8% to higher education. There are now about as many people working in the prisons business in the US as in manufacturing.
The same depressing picture applies to Australia.
Churchill said that the moods and temper of the public in regards to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.
For the last 30 years there has been a large gap between the perception of crime and the reality. It is to be hoped that in the next 30 years the reality of crime can be effectively portrayed and the false perceptions caused by populist law and order politicians can be shown to be the empty rhetoric they are.
The philosopher Thomas Hobbs noted that the greatest power a government can have is to define the terms of the debate. Criminal defence lawyers must strongly and publically participate in this debate so that it is not left to government alone.
Or to apply to criminal lawyers the saying of Martin Luther King: there comes a time when you have to stop being a thermometer and become a thermostat that transforms the morays of society.
Rights for victims need not be secured at the expense of traditional procedural safe guards as though Justice was some kind of commodity that must be taken from some (criminals) so that others (victims) may have more.
Speech delivered by Terry O’Gorman
16 October 2016
Media Release by Terry O'Gorman, Vice President Queensland Council for Civil Liberties
The Civil Liberties Council today attacked the State’s Government new ‘bikie laws’ particularly the mandatory seven year prison term to be served on top of the sentence that a person has been arrested for.
Civil Liberties Council Vice President, Terry O’Gorman, said that the reduction of the mandatory term from 15 years under the Newman Government VLAD laws to seven years in the Palaszczuk Government bikie laws is only slightly less severe but the fundamental injustices and serious unfairness of a mandatory sentencing scheme remain.
The Council agrees with the stance adopted by the conservative Rule of Law Institute who submitted to the Wilson Taskforce which reviewed the Newman bikie laws that “the use of law to impose excessively mandatory sentences to achieve the political objectives of the Parliament to be ‘tough on crime’ is incompatible with the operation of the Rule of Law”.
Mr O’Gorman referred to the comments of the Chief Justice of the High Court of Australia in the Kuczborski VLAD case who observed:
“Under the VLAD Act it is quite possible that a person who would not receive a custodial sentence in the lower range of seriousness (for the offence the person was arrested for) would nevertheless be sentenced to a mandatory 25 years imprisonment”.
Mr O’Gorman said that the Attorney-General (Yvette D’Ath) said in the Explanatory Notes to the new bikie laws that “If the base component (the sentence a person gets for the offence that person was arrested for) does not require the offender to immediately serve a sentence of imprisonment, the offender is to immediately begin to serve the mandatory component”.
Mr O’Gorman said that the Wilson Taskforce noted that mandatory sentencing of this type is a strong incentive for an accused to provide false information in the hope that they can avoid the mandatory sentence.
“We will inevitably witness the spectre of a person fabricating evidence and falsely accusing someone of a crime that they have not committed in order to avoid the mandatory sentence” Mr O’Gorman said.
Mr O’Gorman said it is ironic that Queensland is walking the failed path of mandatory sentence at a time when the criminal justice system in the United States is starting to retreat from mandatory sentencing.
Mr O’Gorman said that informers who currently seek reduced sentences in the current non mandatory sentencing scenario are dealt with in closed Court despite the Supreme and District Court Bench Book noting that ‘openness of our Courts is a fundamental principle of our judicial system’.
Mr O’Gorman said that informers escaping the mandatory seven year imprisonment on top of the sentence for the offence that they have been arrested for because they are dealt with in closed Court far from the prying eyes of the media will inevitably cause miscarriages of justice.
The mandatory sentencing scheme means that a Court will be bound to sentence a person to seven years even if they do not receive imprisonment for the offence they are arrested for.
This makes DPP Prosecutors far too powerful as the now discredited US mandatory sentencing scheme was filled with examples of Prosecutors misusing their position and forcing people to plead guilty under threat of indicting them for offences that carried large mandatory sentences.
Mr O’Gorman said that during the Wilson Taskforce Report there was voting by a majority of four to two against the introduction of mandatory sentencing with the Queensland Police Union and the Commissioned Officers Union arguing for mandatory sentencing.
“After the release of the Wilson Taskforce Report it appears only the police have been consulted by the Government and the Bar Association and the Queensland Law Society were only briefed on the details of the legislation once policy decisions about the new law were made by the Government after secret police briefings.
Mr O’Gorman said that it was an outright absurdity that a Court could be forced to sentence a person to a mandatory seven years imprisonment if the Court decided that the offence that the person had been arrested for did not itself require a term of imprisonment.
“The Civil Liberties Council urges the cross benchers to reject the seven year mandatory sentencing as it inevitably is going to cause serious miscarriages of justice”.
Bikie Laws: QCCL Submission to the Legal Affairs and Community Safety Committee
Terry O'Gorman on behalf of the Queensland Council for Civil Liberties wrote a submission to the Legal Affairs and Community Safety Committee regarding the recent Serious and Organised Crime Legislation Amendment Bill 2016.
This can be viewed here.
A copy of the submission is produced below for convenience.
6 October 2016
The Research Director
Legal Affairs and Community Safety Committee
Parliament House
Brisbane QLD 4000
By email: lacsc@parliament.qld.gov.au
To the Honourable Members of the Legal Affairs and Community Safety Committee,
SERIOUS AND ORGANISED CRIME LEGISLATION AMENDMENT BILL 2016
The Queensland Council for Civil Liberties (the Council) thanks the Legal Affairs and Community Safety Committee for the opportunity to make a submission on the Serious and Organised Crime Legislation Amendment Bill 2016.
The Committee’s Briefing paper claims that the legislation implements the ‘ethos’ of the Taskforce’s Report.[1] However, the Council is concerned that key warnings contained within the Wilson report have been ignored by the Government. The Council is also unconvinced with the limited justification given in the Explanatory Memorandum in line with section 4(2) (a) of the Legislative Standards Act 1992.
In particular the Council makes the following observations;
1.1. New Consorting Offence
The Bill replaces 2013’s anti association offence with a new consorting offence.[2] This provision is claimed to reflect ‘in principle’ Recommendation 18 of the Wilson Report.[3] It draws heavily on the equivalent NSW provisions as noted in Committee’s briefing note.[4]
The Wilson report noted that the NSW laws have been used by police to ‘disproportionately target marginalised groups.’[1]The NSW Ombudsman’s study revealed that 38% of issued warnings were for Aboriginal people and that the provisions had been enforced disproportionately against, for example, youth.[2] Concerns exist that NSW’s ‘wide net’ approach ‘creates an extremely fertile ground’ for corruption.[3] It was against this background the Taskforce took ‘careful note’ of the risks associated with a NSW Model in constructing their proposal.[4]
Therefore, the Council is concerned that the proposed consorting offence does not pay due regard to the issues that arose in NSW and the Taskforce’s consequent suggestions for appropriate safeguards.
i) Definition of Recognised Offender
The proposed Queensland provision differs from NSW on the basis that for a warning to be given a person must be convicted of an indictable offence punishable by a maximum of 5 years.[5] This departure from the NSW model is claimed to allay the issues raised by the NSW Ombudsman.[6] However, the Council points out that the majority of other Australian jurisdictions require the offence to be punishable by 10 years.[7]
Similarly, the Taskforce considered that it was important that the offence be limited so not to apply to those convicted with ‘objectively low-level’ offences that qualify as consorting simply by virtue of their penalty.[8] The Report called for the explicit exclusion of offences such as small scale drug offences.[9]The provision proposed by the Bill does not exclude any such offences.
In fact, provision is made for offences carrying a maximum lower than 5 years to be included in certain circumstances.[10]The Council is concerned that although the 5 year requirement is an improvement on NSW’s ‘wide net’ approach it continues to risk catching low level offending.[11] In echoing the NSW Council for Civil Liberties concerns it is our view that, should a consorting offence exist at all, it should be sufficiently specific. This will ensure the consorting offence only captures the most serious offending, such as that punishable by 15 years.[12]
ii) Defence of Reasonable Excuse
The proposed offence includes various defences to consorting such as family and work interactions.[13] The Taskforce recommended that, in addition, a general defence should be included for those situations that, although reasonable, may not fall into a specific category.[1] Despite such a recommendation, a general defence of reasonable excuse is not included in the proposed provision. The Council submits that a general defence of reasonable excuse is necessary to ensure that everyday lawful conduct does not equate to consorting. The NSW Ombudsman Issues Paper pointed out that an insufficient defence scheme led to situations such as travelling to hospital with friends to visit a patient being unreasonable.[2] A general defence is crucial in avoiding such absurd situations.
i) Onus of Proof
The Council is concerned with the reversed onus of proof in relation to the defences of reasonable excuse. We would echo our NSW colleague’s submissions to the NSW Ombudsman which also reflects the Law Society of NSW’s rejection of a reversed onus of proof.[3] The reversal of the onus of proof is inappropriate and wrong and is, as the Taskforce noted, ‘fundamentally (opposed) to the historically evolved, sophisticated system’ we have.[4]
1.1. Mandatory Sentencing
i) Generally unjust
The majority of the Taskforce reported they were ‘fundamentally opposed’ to mandatory minimum sentencing.[5]
The Council agrees with the submission by the conservative Rule of Law Institute that
“…The use of law to impose excessive mandatory sentences to achieve the political objectives of the Parliament to be ‘tough on crime’ is incompatible with the operation of the rule of law in Australia.”[6]
The Council refers the committee to the Wilson Report’s extensive summary of the negative practical impacts of mandatory sentencing.[7] As pointed out by Melbourne Age police reporter and ex-Victorian Police Officer John Silvester recently, Australian States seem to be walking the ‘failed path’ of mandatory sentencing which the United States is starting to retreat from.[8]
No discussion of the Taskforce’s rejection of mandatory sentencing occurs in the Bill’s Explanatory Memorandum. The Council submits that although the proposed reduction of the mandatory term from 15 to 7 years is slightly less severe, the fundamental injustices and serious unfairness of a mandatory scheme remain.
Of particular note is the likelihood that mandatory sentencing leads to ‘charge-bargaining’ whereby discretion is removed from the court and given to the Prosecution.[1] Similarly the Taskforce outlined the risks, as acknowledged by the Queensland Police Service itself, of promises or inducements by authorities.[2]
Your attention is drawn to the comments of the Chief Justice of the High Court of Australia in Kuczborski quoted in the Taskforce Report at page 111:
“Under the VLAD Act it is quite possible that a person who would not receive a custodial sentence in the lower range of seriousness would nevertheless... be sentenced to a mandatory 25 years imprisonment”
It is the Council’s position that this observation by the Chief Justice is applicable to the new mandatory minimum scheme of 7 years.
The fact that the VLAD law injustices adverted to by the Chief Justice is replicated in the Serious and Organised Crime Bill 2016 is reflected in a statement made in the Explanatory Notes namely:
- If the base component does not require the offender to immediately serve a sentence of imprisonment in a Corrective Services facility, the offender is to immediately begin to serve the mandatory component... (see page 121 Explanatory Notes).
i) Incentive for False Information and Fabrication of Evidence
The Council strongly shares the Taskforce’s concern that this provision is a ‘strong incentive’ for an accused ‘to provide false information in the hope that they can avoid the mandatory sentence.’[3] This risk was also identified by the Bar Association in their submission.[4] As noted by the Taskforce, when one considers the severity of the mandatory sentencing regime, such a concern cannot be disregarded as ‘fanciful or exaggerated.’[5] The Council would remind the committee of the issues that emerged both in the UK in the 1970s and 1980s but also domestically after the Fitzgerald Inquiry with informers or what were colloquially referred to as ‘grasses.’[6]
The Council also notes that these concerns are heightened when one considers these informers are dealt with in closed court. The Supreme and District Court Benchbook confirms that ‘openness of our courts is a fundamental principle of our judicial system.’[7] It is well settled that ‘secret courts are regarded as having a propensity to spawn corruption and miscarriages of justice.’[1] The Council warns that in light of the Taskforce’s position on the incentive to provide false information the nature of closed courts leaves little room for accountability or oversight under this proposed legislation.
Enclosed is a relatively recent article from the 2013 UK publication Criminal Law Review which notes that the use of supergrass evidence (which will occur under the current 7 year mandatory minimum regime) has been marred by a troubled past.. (and) it was ultimately discredited by damning findings of police corruption (and) the use of particularly unfavourable supergrasses.
For those who did not live through the 70s and 80s both in the UK and this country and who did not witness the misuse of supergrasses the enclosed article is informative.
1.1. Restricted Premises and Police Powers
These amendments allow a senior police officer to make an application to a Magistrate to have premises declared ‘restricted’ on the basis that there are reasonable grounds for suspecting that ‘disorderly activity’ is occurring on those premises or that ‘prescribed offenders attend the premises.[2]The Council considers the definition of ‘disorderly activity’ to be not only particularly far reaching but also vague.
The Council is particularly concerned that a restricted premises order, which can last for up to two years, allows for police searches to be undertaken without a warrant.[3] Such a provision ignores the crucial policy considerations underpinning provisions of the Police Powers and Responsibilities Act which safeguard against police misconduct.
1.2. Control Orders
The Bill proposes that a mandatory control order be applied where there is a conviction under the new Serious Organised Crime circumstance of aggravation. Discretionary control orders can also be sought by the prosecution for any other indictable offence.[4]
The Bar Association did not support the Taskforce’s recommendation for mandatory control orders.[5] The Council echoes those concerns particularly when one considers the impact an order will have on an accused’s work prospects.
The Explanatory Memorandum notes that control orders ‘are intended to become relevant in the assessment of a person’s suitability for a licence, permit, certificate or other authority under the affected occupational licensing Acts.’[6] The Explanatory Memorandum conceded the provision infringes on, for example, a right to work[1] and will be a consideration when someone applies for a wide range of work licences.[2]
The Council is concerned that although the court’s discretion may allow for minimal conditions for less serious circumstances, a control order will still unfairly impinge on a person’s right to work. The safeguard which makes conditions discretionary is made redundant by the mandatory nature of the order in relation to serious organised crime circumstances of aggravation offences.
This unjustifiably leads to the grave potential to affect a person’s ability to work, or attain the requisite licences to work.
5. General Concerns regarding Legislative Scrutiny
The Explanatory Memorandum, pursuant to section 4(2) (a) of the Legislative Standards Act 1992, provides an explanation of how each of the above provisions will impinge on various civil liberties and rights.
However, it is the Council’s view that the justifications given are insufficient. Beyond claiming that provisions, for example, are ‘justified to punish and signal the community’s disapproval of serious and organised crime’[3] little substantive discussion of the affected rights occurs.
The ‘nebulous’ effect of Legislative Standards Act has been highlighted by the current Human Rights Inquiry.[4] In our submission more should be done to justify why the provisions’ concepts of necessity and public safety outweigh fundamental legislative principles and civil liberties.
It is noted that a submittee to the recent Queensland Parliamentary Inquiry into a possible Human Rights Act for Queensland noted:
- The Legislative Standards Act 1992 (Qld) Section 4 (3) contains a relatively nebulous requirement that legislation should have ‘sufficient regard’ to the rights and liberties of individuals. The enumerated rights and liberties cohere with several, traditional, common law rights (eg. natural justice) and ‘Rule of Law’ concepts (eg. clear and precise legislative drafting). But the scope of rights to be considered by Queensland’s (portfolio) committees when examining bills and subordinate legislation is thin compared to legislative review processes under statutory human rights internationally and in Victoria and the ACT (see submission number 468 page 9 to the Human Rights Inquiry).
The Parliamentary Committee Briefing Note in relation to the Serious and Organised Crime Legislation Amendment Bill 2016 notes (and this is particularly relevant to the still absurd 7 year mandatory minimum):
The Government’s Regime implements the ethos of the Taskforce recommendations, and the recommendations of the Commission but makes enhancements and adaptations aimed at balancing the legal challenges emphasised by the Taskforce where the operational needs of
- law enforcement agencies (emphasis added) (see Parliamentary Committee Briefing Note page 7).
What has in fact occurred (particularly by reference to page 241 of the Taskforce Report) is that despite the Taskforce Chair, the Bar Association, the Queensland Law Society and the Public Interest Monitor being opposed to a mandatory sentence regime for the new serious organised crime circumstances of aggravation offence, subsequent to the production of the Taskforce Report the views of the Police have reigned supreme, euphemistically described in the extract from the Parliamentary Committee Briefing Note (above) as ‘enhancements and adaptations’.
After the release of the Wilson Taskforce Report it appears only the Police have been consulted by the Government. The Bar Association and the Queensland Law Society have been briefed once policy decisions were made by the Government after secret police briefings.
The Taskforce over numerous pages in its report detailed a large number of instances in other States of Australia where mandatory minimum sentences have wreaked injustice.
Despite the detailed and careful work of the Taskforce law and order populism rather than the carefully reasoned arguments of the Taskforce Report wins out in a way that is inevitably going to produce serious injustices.
The Council cannot emphasise enough the dangers presented by the new 7 year mandatory minimum.
Conclusion
The Council respectfully submits that the proposed provisions in the Serious and Organised Crime Legislation Amendment Bill 2016 do not reflect the far-reaching and detailed work leading to the Taskforce’s Report. The failure to implement key safeguards proposed by the Wilson Report results in the continuation of harsh outcomes particularly with the 7 year mandatory minimum. Without the full force of the recommendations in the Taskforce’s Report many of the unjust concerns that arose under the VLAD laws will continue to occur, especially in relation to the mandatory minimum 7 year extra sentence on top of the base offence for the serious organised crime circumstances of aggravation offence.
Yours faithfully
QUEENSLAND COUNCIL FOR CIVIL LIBERTIES
TERRY O’GORMAN
VICE-PRESIDENT
[1] Explanatory Memorandum, p39.
[2] Explanatory Memorandum, p92.
[3] Explanatory Memorandum, p36.
[4] Committee Report, p8; Peter Billings, submission 468, p 9
[1] G. Nettheim, “Open Justice versus Justice”, Adelaide Law Review 9(4) May 1985, 487; Chief Justice Murray Gleeson, 'Judicial Accountability' (1995) 2 Judicial Review 117, 123-4. See also Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J)
[2] Briefing Paper, p16.
[3] Briefing Paper, p16.
[4] Explanatory Memorandum, p21.
[5] Wilson Report, p257.
[6] Explanatory Memorandum, p30.
[1] Wilson Report, 232;
[2] Wilson Report, 236.
[3] Wilson Report p225.
[4] Bar Association of Queensland, Submission 5.1 to the Taskforce on Organised Crime Legislation, 5 August 2015, 8-9.
[5] Wilson Report, p225.
[6] See, for example, Duncan Campbell, 1996, Put out to Grass; Use of Informers by British Police, The Guardian, April 30, 1996.
[7] Supreme and District Court Benchbook: Closed Court Exceptions September 2014 Amendment; Scott v Scott [1913] AC 417.
[1] Wilson Report, p198.
[2] NSW Ombudsman Issue Paper, p44-45.
[3] NSWCCL Submission p20; NSW Ombudsman Issue Paper p47.
[4] Wilson Report, p178.
[5] Wilson Report, p181.
[6] Rule of Law Institute of Australia, Submission 5.2 to the Taskforce on Organised Crime Legislation, 7 August 2015, 2.
[7] Wilson Report p230 -234.
[8] John Silvester, How to break the crime cycle, The Age, 30 September 2016, http://www.theage.com.au/victoria/how-to-break-the-crime-cycle-20160929-grr3kg.html
[1] Wilson Report, p25
[2] NSW Ombudsman Consorting Issues Paper, p30.
[3] Alex Steel, Consorting in New South Wales: Substantive Offence of Police Power? (2003) 26 U.N.S.W.L.J 267, 598.
[4] Wilson Report, p196.
[5] As opposed to any indictable offence in NSW; Briefing note, p12.
[6] Briefing note, p12.
[7] Victoria, Northern Territory; see Wilson Report p196.
[8] Wilson Report, p196.
[9] Wilson Report, p196.
[10] Explanatory Memorandum p10
[11] Wilson Report p196.
[12] NSWCCL Submission p10.
[13] Briefing note, p13.
[1] Briefing Paper, p2.
[2] Explanatory Memorandum, p9.
[3] Explanatory Memorandum, p10.
[4] Briefing note, p15; Explanatory Memorandum p10.
Media Release by Terry O'Gorman: Palaszczuk Government's Proposed Bikie Laws
Yesterday’s and today’s media claims that revised so called bikie laws will “lift ban on bikie bars” and will allow “bikies to get back licences for guns” have been described as incorrect and alarmist.
Queensland Council for Civil Liberties Vice President (Terry O’Gorman) said a reading of the Explanatory Notes to the new organised crime laws introduced into Queensland Parliament earlier this week noted:
The (Wilson) Taskforce recommended that people should not be refused a licence solely on the basis that the person is alleged to be a participant in a criminal organisation. The Taskforce recommended that licences should only be refused on the basis that there is evidence specific to the individual which demonstrates that the individual is not a suitable person to hold a licence (emphasis added).(1)
Mr O’Gorman said that the Explanatory Notes go on to indicate that “…however the new serious and organised crime offences (and the related control orders) are intended to become relevant in the assessment of a person’s suitability for a (liquor and gun) licence.”(2)
Further, in relation to the Weapons Act, the Explanatory Notes clearly indicate that a ‘fit and proper person’ test will continue to exist and require (the police) to make a decision whether a person is appropriate to hold a licence (emphasis added).(3)
“Therefore the scare scenario promoted by news reports over the last two days that bikies will be running bars and readily carrying guns are simply incorrect when fact-checked against the actual provisions of the new Serious and Organised Crime Bill” Mr O’Gorman said.
Mr O’Gorman said that the Civil Liberties Council intends to regularly put out ‘fact-check’ media releases between now and up to when Parliament debates the new organised crime/bikie legislation to debunk wrong information about what the new laws actually say.
“It is important to remember that the Wilson Report on which most of the new organised crime/bikie laws is based noted that bikies were responsible for less than 1% of serious criminal offending”.(4)
Mr O’Gorman can be contacted during business hours on 07 3034 0000
(1) See recommendation 56 of Taskforce referred to at page 29 of the Explanatory Note
(2) See Explanatory Notes page 30
(3) See Explanatory Notes page 30
(4) See page 8 of the Wilson Taskforce which said “…OMCG Member crime rates before the 2013 suite (the Newman/Bleije VLAD Laws) were as a proportion of overall crime less than1% and, according to some figures, much lower”.
Media Release by Terry O'Gorman: Palaszczuk Government's Proposed Bikie Laws
The retention of mandatory sentencing under the Palaszczuk Government’s proposed new bikie laws flies in the face of a major recommendation of its own Wilson Inquiry.
QCCL Vice President, Terry O’Gorman, said that the mandatory minimum sentence applicable to the Government’s proposal as outlined in the Wilson Inquiry terms of reference is “in the view of the (Wilson) Taskforce potentially excessive and disproportionate”(1).
Today’s newspaper leak on the new laws indicates that the bikie law review “will also retain additional mandatory penalties as an inducement for effective co-operation with police”, Mr O’Gorman said.
Mr O’Gorman said the Taskforce in addressing this issue “considered the risk (that such a mandatory sentencing regime) has the potential to attract and even encourage fictitious co-operation, that is circumstances in which persons facing very high (mandatory) sentences will fabricate information to attract the chance of some relief from them”(2).
Mr O’Gorman said that Taskforce addressed the concern that a person who is unable to “significantly co-operate not through an unwillingness to do so but because they simply do not know anything of importance has a strong incentive to provide false information in the hope that they can avoid a mandatory sentence”(3).
Mr O’Gorman also said that the proposed ban on bikies wearing their colours in public places is a law and order gimmick by the Premier having regard to the well established statistics outlined in the Wilson Report that bikies represent less than 1% of all crime in Queensland.
“The 2015 Queensland Byrne Report into organised crime set bikie crime statistics at 0.52%” (see Chapter 1 of Wilson Report).
“The Wilson Report notes that while bike gangs are seen by many to be the public face of organised crime the most reliable of statistics show bikies are charged with a small proportion of crime, no more than 0.52% of all offences committed across Queensland” (see Chapter 2 of the Report).
“This is a statistic supported by ex high ranking Queensland Police Officer come criminologist Professor Terry Goldsworthy” Mr O’Gorman said (see Chapter 1 of Wilson Report).
Mr O’Gorman also said that mandatory sentencing leads to injustice as the Court is prevented from giving proper consideration to the subjective circumstances regarding the offence and that a sentence must be tailored to fit the crime.
“Justice must be individualised and penalties fixed in advance by Parliament cannot achieve this” Mr O’Gorman said(4).
(1) See page 398 of the Wilson Report
(2) See page 225 of the Wilson Report
(3) See page 225 of the Wilson Report
(4) See page 232 of the Wilson Report.
Media Release by Terry O'Gorman: Call for an Independent Prisons Inspectorate
MEDIA RELEASE BY TERRY O’GORMAN
VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES
The Attorney-General and Juvenile Justice Minister Yvette D’Ath has denied that there is a culture of mistreating young offenders in Queensland such as in the Northern Territory but this denial would be more credible if there was an Independent Prisons Inspector.
Civil Liberties Council Vice-President Terry O’Gorman said that allegations of a youth detainee being stripped naked, handcuffed and left in isolation in a Townsville juvenile jail should have been independently investigated, and not internally reviewed within the Youth Justice Portfolio.
“In Western Australia, there has been an Independent Prisons Inspector for years based on the highly successful Independent Prisons Inspectorate model which has operated in the UK for decades”, Mr O’Gorman said.
Mr O’Gorman said that in Queensland there is an internal inspection and investigation system operating in relation to adult and juvenile prisons.
“The problem with this model is that it is the Department investigating itself. This is not a credible accountability model”, Mr O’Gorman said.
Mr O’Gorman said that the strength of the WA and UK models is that the Prisons Inspectorate is truly independent from the adult and juvenile prison bureaucracy, and reports to Parliament and not to the Prisons and Juvenile Justice Minister or the Prisons Department.
“Prisons are out of sight and out of mind in Queensland. The credibility of allegations of mistreatment are dependent on assurances from the Department and the Minister that they have been thoroughly investigated, as the Juvenile Justice Minister Yvette D’Ath said yesterday had occurred in relation to the Townsville juvenile jail assault allegations”, Mr O’Gorman said.
“Queensland prisons are significantly overcrowded. They are violent places but the public rarely gets to see or hear what is going on within the jail walls”, Mr O’Gorman said.
“If Queensland had an independent Inspector of Prisons (adult and juvenile) with power
to do without notice inspections 24 hours a day 7 days a week and with regular reports
to Parliament and not being able to be controlled or directed by the prisons bureaucracy
and the Minister, they would be safer and much more accountable and transparent
places”, Mr O’Gorman said.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
A Current Affair: Police Officer draws gun
On June 7 2016 partner Terry O'Gorman appeared on A Current Affair in relation to the controversy surrounding a senior constable using his gun to pull over speeding vehicles. The officer has been charged and suspended without pay pending the outcome of the investigation.
Mr O'Gorman noted the importance of body worn and dashboard cameras in cases like these. He also urged that the drawing of a gun by an officer should be reserved for the most serious of situations.
Mr O'Gorman believe the officer should be suspended with pay until his guilt or innocence is established by the investigation.
The full story can be watched via our Youtube channel here.
Review for Clare's Law in Queensland
Terry O'Gorman, director of Robertson O'Gorman Solicitors, appeared on Seven News to discuss the recent decision by the Palaszczuk Government to consider the introduction of Clare's Law in Queensland.
Watch the story here.