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April 8, 2016

Greater police powers and penalties threaten civil liberties in NSW for ‘public safety'

The Knitting Nannas Against Gas could be caught up in a push by the NSW government to criminalise legitimate protest, writes Associate Professor Julia Quilter.

The New South Wales government recently introduced two new laws that impose serious constraints on how we use public spaces. They represent just the latest round of expanded police powers and higher criminal penalties justified in the name of 鈥減ublic safety鈥�. The government鈥檚 solution is to let police decide who has the .

State parliament passed one of these laws in March. The other has been introduced and is likely to be passed when parliament resumes in May.

The measures are said to be a response to the dangerous and disruptive activities of a 鈥渞adical minority鈥� who 鈥渁buse鈥� the democratic right to protest, and to organised crime gangs who threaten our 鈥渨ay of life鈥� if allowed to move freely in the community.

Whether these groups really do pose the risks the government claims is debatable. The bigger problem is that it isn鈥檛 just the 鈥渂ad guys鈥� who are exposed to restrictive powers and tougher penalties. Anyone whose behaviour is regarded as a public safety risk is potentially in the frame.

The government has yet again vested enormous discretion in police officers to make that assessment 鈥� in some instances with no opportunity for judicial review.

New offences and police powers

The offence of trespass has a long history as a mechanism for criminalising political protest. In the early 1970s it was squatters and protestors opposed to over-development in Kings Cross.

Harsh punishment was never really the objective. Having the offence on the statute books gave police a reason to intervene, arrest and charge protesters.

Now the police have a new tool in their anti-protester toolkit. This has a very different complexion. An aggravated offence of unlawful entry on now carries a maximum fine of A$5,500.

鈥淎ggravation鈥� can take two forms: interfering with the business being conducted on the land in question; or conduct deemed to give rise to a 鈥渟erious risk to the safety鈥� of anyone present, including the protester.

Even more troubling, police now to give 鈥渕ove on鈥� directions to break up a protest if they believe that direction is necessary to deal with a . Police previously weren鈥檛 allowed to give move-on directions at an .

The parliament has authorised police to be the arbiters of what makes a legitimate protest.

Public safety orders

The yet-to-be-passed bill will give a senior police officer 鈥� not a judge 鈥� the power to make 鈥減ublic safety orders鈥�. These will prohibit someone from attending a specified public event or entering specified premises for up to 72 hours.

An order can be made if the person鈥檚 presence at the event or premises is regarded as posing:

鈥� a serious risk to public safety or security.

The risk test is whether the person鈥檚 presence might result in death or serious physical harm to a person, or serious damage to property. The legislation provides for a range of matters that police must take into account. These include the person鈥檚 criminal history and the reason for their attendance at an event.

Lots of cautious words and talk of 鈥渆xemptions鈥�, such as where the purpose of a person鈥檚 presence is industrial action, don鈥檛 change the fact that the proposed law gives the police very wide discretion to decide who should be allowed to circulate freely in public. The consequences are serious. The maximum penalty for contravention of a public safety order is five years' imprisonment.

Our system normally punishes only after guilt has been determined. But , and laws directed at are all based on pre-emptive criminalisation.

The need for pre-emptive measures should be supported by strong evidence. It shouldn鈥檛 be enough to simply roll out widely demonised figures who evoke community anxiety 鈥� 鈥渕ilitant greenies鈥� or 鈥渧iolent bikies鈥� 鈥� to justify the law.

Caught in the web

The problem with laws aimed at 鈥渂ad guys鈥� is that they frequently have wider impact.

The found the 2012 revival of consorting laws to deal with crime gangs actually impacted most harshly on Indigenous Australians and homeless people.

Even in law-and-order-soaked NSW, it would be hard to get the public onside to criminalise the protest activities of . But just because your tools of preference are knitting needles and bright colours rather than dreadlocks and thumb-locks, that doesn鈥檛 mean you won鈥檛 be regarded as a threat to public safety, ordered to 鈥渕ove on鈥�, or threatened with the prospect of a criminal record and a $5,500 fine.

Borrowing from elsewhere

Anti-protest powers and offences were pioneered in and . The public safety order regime has been borrowed from .

That a law has already been introduced somewhere else tends to legitimise what is actually a radical 鈥渞eform鈥�. If Western Australians, Tasmanians and South Australians can stomach a little civil liberties infringement in the name of the greater good, why not the people of NSW?

This may be clever politics. But it is not the way to make good criminal laws.

, Professor of Law, and , Associate Professor of Law,

This article was originally published on . Read the .

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