Draconian legislation in NSW to combat “serious” crime … British equivalent extends its reach to trivial offences … NSW’s law and justice policies being run by the police … Liberal MP, Henskens SC, defends police state measures and criticises the bar for speaking out … Ill-informed political attack 

Recently installed Liberal MP Alistair Henskens SC is out of the blocks with a whacko piece in The Australian (where else?) defending the NSW government’s introduction of serious crime prevention orders. 

In the process he slaps the bar association for having the temerity to issue a media release and an analysis of the legislation. Henskens, who took Barry O’Farrell’s safe Liberal seat of Ku-ring-gai, said that bar prez Noel Hutley failed to mention that the NSW law is modelled on the fantastic British regime for serious crime prevention orders – so wot’s to complain about?  

If it’s good enough for the Brits it’s out of line for the bar, or anyone else, to criticise it. 

In NSW law and justice policies are run by the Police Minister, Troy Boy Grant, while the attorney general Gabrielle Upton plays second or third fiddle. 

For those who are not alive to the NSW Serious Crime Prevention Orders Bill, here are some of its unattractive features, and don’t be surprised if other states and territories embrace them: 

The bar described SCPOs as a “rival system” to criminal justice. There’s also a good argument that the legislation is constitutionally invalid  because it amounts to “an unacceptable diminution of the institutional integrity of the courts of the state to require them to conduct substandard simulacra of criminal trials at the behest of the executive”. 

The parliamentary research service has more details here 

And here is the bar’s submission and media release 

Henskens from Ku-ring-gai ignored the worst features of the legislation in his newspaper treatise, proclaiming the Bill as an “innovative but reasonable” change.  

The British model itself is far from peaches and cream and, in any event, there are significant differences between the NSW legislation and it’s British counterpart. 

Bar president Hutley has responded to Henskens, pointing out that some of the worst elements of the NSW legislation find no correspondence in the UK legislation – namely, the possibility of an order in the absence of conviction and the use of hearsay evidence.  

Former justice Alan Wilson from Queensland has also pointed out that the broad power to impose control or prevention orders in Britain has to be read down in light of the Human Rights Act. Any interference with human rights has to be necessary and proportionate to a legitimate purpose. Things like house arrest would be out of the question.  

There is no such constraint in NSW. 

Successive amendments to the British Serious Crimes Act, first introduced in 2007, have extended the range of offences that can attract control or prevention orders, from serious to relatively minor – e.g. cultivating cannabis, firearms violations, and computer misuse. 

In his recent report on Queensland’s criminal organisation legislation, former justice Alan Wilson also looks at the way the British SCPOs have caught trivial offences in the net. 

For instance, the definition of “serious crime” potentially extends to include fishing for salmon with the wrong tackle and the unauthorised disposal of controlled waste. 

Criminologist Rory Kelly, a research assistant with the UK Law Commission’s criminal justice team, has written:  

“Government continues to increase the number of offences that can trigger a civil preventive order, and each time the justification given is that this particular offence is exceptional because it is a very serious problem. But, the more offences that are suggested to be serious enough to be dealt with by a civil preventive order the weaker this argument becomes.” 

Henskens also had a swipe at the bar for speaking-up about the prevention orders Bill, tritely suggesting that members of the bar council are “running political agendas”. Not content with that he accused “nameless employees within the organisation” as being behind these dastardly pronouncements. 

There are shades here of Jeffrey Phillips and the 2015 bar council election campaign when the ultra-conservative faction made excitable and inaccurate claims about the bar’s media statements. 

Maybe Henskens is positioning himself to be the next NSW AG … shudder.