Police and their terrorism powers – not much to report … Inspector Bruce looks at the Top End’s secret corruption … Deconstructing the attorney general’s announcements … Discriminating amendments … The bench gets slow backup for “historic” sentencing reforms … Standoff over appointment to the Children’s Court … Polly Peck reports from Macquarie Street
The Terrorism (Police Powers) Act, 2002, NSW, is supposedly a key weapon in the war against terror.
It has been expanded and widened by successive governments over the years so that the police got more and more powers to keep the citizens of New South Wales as safe and as snug as bugs in a rug.
Under the legislation, the wallopers have special powers to investigate and prevent terrorist acts, to search people, property, vehicles, cordon things off, to detain people and things, to use force, to preventively lock-up people, and use covert search warrants.
In exchange for being granted this extensive law ‘n’ order ambit the police are required to make reports annually and state what they have been up to.
So, how’s the war on terror going in NSW in the latest year under review – 2017-2018. Police Commissioner Mick Fuller provides the following information for the year:
It’s a five year term and will be carried out concurrently with Inspector Bruce’s role as NSW ICAC inspector.
If corruption bodies need inspecting Brucie is the go-to man.
You might imagine that the Top End would be rife with corruption, which is why its anti-corruption body is designed to conduct operations behind closed doors.
According to the NT News, territory commissioner Ken Fleming is expecting a “flood” of work to be conducted in secret. He said:
“I think [the public] will be expecting much more information than I’ll be able to give them because confidentiality surrounds a report and confidentiality surrounds an investigation.”
Inspector Bruce also runs a lucrative defamation business, with choice customers including former treasurer “Sloppy” Joe Hockey, influential Chinese moneybags Chau Chak Wing, #MeToo suspect Geoffrey Rush, raunchy big-bash cricketer Chris Gayle and Eddie Obeid of the Cooma Correctional Centre.
NSW AG Mark Speakman has been spruiking his changes to the NSW Anti-Discrimination Act.
“These laws will send a strong and clear message to people who think it’s acceptable to incite violence against people because they belong to a particular group,” he announced.
A noble goal to be sure, but is that really what the new laws actually do for people based on racial, religious, sexual, gender or HIV/AIDS discrimination?
The amendment, contained in s.93Z of the Crimes Act, prohibits “publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status”.
The penalty is up to three years jail and fines of up to $11,000 for individuals and $55,000 for corporations.
The Act did not amend the civil prohibitions relating to discrimination on grounds of race, religion, sexual orientation, gender identity or HIV/AIDS, which can still be dealt with by the Anti-Discrimination Board, by way of conciliation, and by NCAT if conciliation fails.
However, the more serious vilification offences on those grounds have been removed from the Anti-Discrimination Act and rolled into the new threatening or inciting section in the Crimes Act.
There had never been a successful prosecution under the old serious vilification offences of the ADA, so the issue on many lips is whether there will be more success under the s.93Z of the Crimes Act.
Speakman believes this is an improvement on the old offence, but it smacks of former Commonwealth attorney general Gorgeous George Brandis’ campaign to water-down the federal racial discrimination laws.
Our man in London wanted to do away with prohibitions on “offending, insulting and humiliating” people on the basis of race and raise the threshold to “harassing” them.
Attorney General’s announcement
The changes, described by the the attorney as “historic”, reform the court’s options for non-custodial sentences – including the abolition of suspended sentences.
They took effect on Monday, September 24 yet, according to an email from the Judicial Commission, magistrates were only given access to updated bench books late on Friday, September 21. The commission told judicial officers:
Subject: Bench Book updates in response to the sentencing reforms
Dear Magistrate
Given 24 September is looming, I thought it was timely to alert you to the fact the updates to the Sentencing Bench Book and the Local Court Bench Book will not be available until late on Friday, 21 September.
It is not possible to publish the material earlier because the regulations supporting the amendments are still not available and are unlikely to be proclaimed until later this week (although material has been prepared using the draft regulations which the Department of Justice assures me are in their final form).
There is one other important matter you need to be aware of. The material in the Bench Books concerning these reforms will not, as is usually the case, link to the legislation. This is because the Parliamentary Counsel’s Office has advised, through the Department of Justice, that there will be no consolidated versions of the Acts or Regulations before late next week and any links we added at this stage would link to the unamended provisions. We are not willing to do that …
Regards
The government has been tripping over itself in its haste to announce and implement the big changes.
For trial judges and magistrates, two days – over a weekend – to familiarise themselves with complex new sentencing rules can hardly have been sufficient. One magistrate described the situation as a “fiasco”.
The new legislation alters how good behaviour bonds (now community correction orders) and home detention orders (now intensive correction orders) work. Already, offenders will have been sentenced under the new rules.
The Act now appears to be up to date, as is the bench book. While the legislation is mentioned, there don’t appear to be any links to it in the publicly available online version of the bench books – but apparently that is not unusual.
The actual changes are a mixed bag. The legislation provides for stronger sentences against perpetrators of domestic violence.
According to the government, suspended sentences will be replaced with tougher intensive correction orders, which require that the offender be supervised while in the community. Speakman said:
“… suspended sentences will be abolished as a sentencing option and will be replaced by stronger intensive correction orders (ICOs) with supervision as a standard condition and a range of other available conditions.”
However, the new conditional release orders (CRO) – which require the offender not to commit further crimes and report to court if required – are a closer analogue to suspended sentences.
The courts can place additional conditions on a CRO, but they don’t have to.
Magistrates therefore may prefer to sentence offenders whose conduct is at the low range of severity to a CRO rather than an ICO.
If that happens, it may be that this much-trumpeted aspect of the reforms resembles more a shuffling of the deck than a substantive change.
The outcome will be up to judicial officers, who began sentencing offenders under the new laws with just a few days in possession of bench books.
A curious little mystery surrounds the appointment of Debra Maher as a magistrate to sit in the NSW Children’s Court.
Ms Maher is well qualified for the job having been solicitor in charge of the children’s legal service and worked as a criminal lawyer for a number of agencies, including the DPP, ICAC and Legal Aid.
“Ms Maher will join the Children’s Court where she will preside over a range of matters from crime to applications for apprehended violence orders and cases involving the care and protection of children.”
His intention was that Ms Maher would sit as a specialist children’s magistrate – except that Chief Magistrate Graeme Henson believes he’s in charge of appointments to the Children’s Court.
The AG can only appoint someone as a magistrate – it’s Henson who decides, after consultation with the president of the Children’s Court, Judge Peter Johnstone, who gets to be a children’s magistrate.
Maher was sworn in on June 13 but Henson had not signed her up to the Children’s Court.
Three months later, on September 11 she appeared on the list as “Her Honour Magistrate D. Maher”, not as “Her Honour Children’s Court Magistrate D. Maher”.
Henson had been spitting chips that the Children’s Court was spun off as a separate entity from the Local Court. He believes that the AG has no jurisdiction to make appointments on his turf.
It look like the standoff continues.