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Albanese Must Deliver Human Rights Protections

“No one left behind because we should always look after the disadvantaged and the vulnerable… to make a positive difference each and every day”, said Anthony Albanese during his victory speech last month. And to “unite around… our shared values of fairness and opportunity”.

Civil Liberties Australia (CLA) chief executive Bill Rowlings highlights these comments made by the incoming prime minister, as his organisation asserts, that the new Labor government would go a long way to achieving these aspirations by prioritising the enshrining of basic rights in federal law.

Australia is currently the only western democracy without laws guaranteeing human rights at the federal level.

Often referred to as a bill or charter of rights, or a human rights act, such laws serve to protect the rights of citizens in their daily lives, as well as ensuring that rights-eroding laws aren’t enacted.

So, with the coming of the Albanese government, CLA is ramping up its Human Rights Act (HRA) campaign following two years of behind-the-scenes advocacy work, which has involved close to 100 meetings with stakeholders, including four with new Australian attorney general Mark Dreyfus.

A key reason why a government might be reluctant to enact such laws is that they curb the powers of those who govern. Although, of the two majors, Labor has always shown more willingness to consider such measures, and the party has a HRA review as part of its current policy platform.

It’s time (again)

“CLA held meetings with all the usual suspects, but many more as well,” said Rowlings. “Like minerals and business council executives, three Aboriginal land councils, the Minderoo Foundation, farmers groups, federal, state and territory politicians of all colours, and even opponents of a HRA.”

“We were sounding out current thinking and comparing it with the overwhelming support among Australians evidenced in the massive 2009 public consultations held nationwide,” the CLA chief executive told Sydney Criminal Lawyers.

The Rudd Labor government established a National Human Rights Consultation Committee (NHRCC) in November 2008. Headed by Father Frank Brennan, the inquiry undertook widespread consultations and went on to produce a report recommending the establishment of a federal HRA.

But in April 2010, Rudd released his government’s response to the inquiry. And instead of drafting a HRA, it committed to establishing a Parliamentary Joint Committee on Human Rights to scrutinise federal laws through a rights lens, which the Gillard government saw to fruition in 2012.

So, right now, we’re back to the same position the nation found itself in 2007, with a federal Labor government promising a HRA review. Yet, according to Rowlings, the clear difference now is that the political landscape has changed dramatically both within parliament and the national conscience.

The writing’s on the wall

CLA has found that businesses and corporations are already factoring human rights into their dealings with stakeholders and customers. “It just makes business sense, part of their social compact with the community, to ensure they have a ‘licence’ to operate,” Rowlings added.

The liberties advocate further explained that the need to include “societal values” in business decisions has been learnt the hard way, via situations like “Rio Tinto’s blowing up of the 46,000-year-old Juukan Gorge caves”, which saw share prices crash and executives lose their jobs as a result.

At the grassroots level, the lack of rights protections in this country has been brought to the fore via recent government policy decisions. Rowlings pointed to restrictions on returning to the country during the pandemic as an instance, along with the abuses of Robodebt, which continued for years.

“Why couldn’t people easily enforce their rights to travel overseas during the pandemic, when other countries were willing to take them?” asked Rowlings in highlighting another example.

“Now, with the experience of how easily rights and liberties can be snatched away in an instant at a media conference, even more Australians will support a HRA, CLA believes.”

Neglected protections

Many questioned the constitutionality of recent COVID restrictions, only to find that the nation’s founding document guarantees very few rights.

Indeed, there were discussions held in the 1890s concerning whether a bill of rights should be included in the Australian Constitution, but the idea was dropped as it might have impacted upon laws of the day that were racially discriminatory in nature.

So, only a handful of rights appear in the Constitution. Section 41 provides the right to vote. Section 51(xxxi) guarantees just government acquisition of property. Section 80 ensures trial by jury. Section 116 establishes freedom of religion, while section 117 guards against discrimination based on state.

The High Court of Australia further found in 1992 that within the 1901 founding document is the implied right to freedom of political communication.

A HRA, however, would enshrine the rights contained within the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Australia has ratified both these treaties, which means it’s guaranteed to uphold these rights at the international level but not domestically.

The Liberal Nationals have traditionally been against enacting a national HRA. In fact, the Morrison government attempted to pass the Religious Discrimination Act, which was an attempt to elevate the pre-existing right to freedom of religion above all others.

While Labor has more open to such laws in the past, as was evidenced by the 2009 Brennan review, and with the Whitlam government’s attempt to enact one. In 1973, then attorney general Lionel Murphy introduced a HRA under Gough, which ultimately failed to due to opposition.

Over recent years, Andrew Wilkie has been championing the cause at the federal level. The Independent MP introduced two Australian Bill of Rights Bills: one in 2017 and another in 2019.

An ICAC isn’t enough

Labor is committed to the HRA review, assures Rowlings, but he underscores that they “need to act on it early in their term, because the last thing anyone wants is the importance of a HRA being pilloried during an election campaign by the negativity of populist politicians”.

A key issue during the election campaign was the establishment of a federal national integrity commission, and whilst this will prevent “politicians and corporate heavies” from abusing the system for their own financial gain, there continues to be a need for basic rights protections regardless.

“In the day-to-day dealings of the people with government, there’s an equal need to ensure individuals can enforce their rights with remedies that are quick and relatively easy to access,” explained the CLA chief executive.

Light at the end

In stepping up its years-long HRA campaign, CLA has approached all teal and other independents that have recently been voted into office, to advise them that an effective national integrity commission is not enough, and laws protecting grassroots rights are essential to a just society.

CLA considers a national ICAC and federal HRA will form “the basis of the ethical infrastructure needed to make our society sustainable and fair”. And it expects that the 14 percent of the country that opposed such laws in 2009, will have dropped dramatically in number following the pandemic.

“We think the new attorney general and most Labor MPs agree with us, as do the Greens formally, and many of the new teals,” Rowlings said in conclusion.

“Our campaign is mainly to get the AG and the government to act quickly on the matter, starting in the first 100 days and delivering in the first 18 months.”

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Albanese Could Bring an End to Coalition’s Political Prosecutions

The ongoing authoritarian creep witnessed under the Morrison government was ultimately rejected at the polling booths last weekend.

Indeed, the shift away from both major parties has made it clear that the trajectory the nation was on isn’t the favoured one.

The mounting surveillance state laws that have been passed over the close to a decade of Coalition rule have been a bipartisan project, so it’s somewhat doubtful that a shift from Liberal to Labor is going to result in a recommended winding back of the ongoing national security framework.

The Albanese government, however, might be expected to pull back on some of the other excesses of the Morrison years, especially in terms of lack of action on climate, the crackdown on press freedoms and the utter refusal to consider a substantial anticorruption body.

There are distinct signs that change is coming under Albanese. New foreign affairs minister Penny Wong has pledged a respectful relationship with Pacific nations, particularly in terms of climate, while a federal ICAC seems destined, especially with the Greens and independents demanding so.

But then there are other less sureties. Morrison and Dutton were pressing for war with China, and Albanese’s first step in office has been to join a meeting of the Beijing-focused Quad alliance, while there are still questions remaining as to whether some the political prosecutions might end.

A death in the family?

“Enough is enough,” then federal opposition leader Albanese responded in February 2021 to a question about the ongoing incarceration of Julian Assange in the UK. “I don’t have sympathy for many of his actions but essentially I can’t see what is served by keeping him incarcerated.”

Right now, the WikiLeaks founder’s future is hanging by a thread, after he’s been remanded for three years in London’s Belmarsh Prison awaiting a final decision on whether the UK will hand him over to the US to face espionage charges carrying up to 175 years behind bars.

The White House is pursuing the Australian journalist over his 2010-11 publishing of the details of classified documents revealing US war crimes leaked to him and exposed whilst he was in a foreign jurisdiction, at the same time that other major publications globally revealed the same information.

The UK and the US are Australia’s closest allies. Over the last decade, no Australian PM has ever spoken out in Julian’s favour until Albanese did so prior to taking office. And it’s understood that now he’s in office he could at least discuss the Australian citizen’s releasee with Biden or Johnson.

Currently, the UK court system has greenlighted Assange’s extradition to the US, and the final decision is set to be made by UK home secretary Priti Patel within days. It’s also readily understood that the extreme prison conditions Assange could be subjected to in the US would likely kill him.

Settling old scores

Former shadow attorney general Mark Dreyfus is expected to be appointed the next federal chief lawmaker after the new prime minister returns back from his Quad discussions in Japan, which will place the prosecutions of certain other Australian whistleblowers in the new AG’s lap.

Dreyfus told the Guardian on Tuesday that if given the nod, he’ll be seeking an early briefing on a number of matters, which will include the prosecution of Bernard Collaery for his alleged part in exposing the Australian government’s illegal bugging of the Timor-Leste cabinet offices in 2004.

The decision to prosecute former ASIS agent Witness K and barrister Bernard Collaery over revealing the illegal spying operation carried out by the Howard government was taken in mid-2018 by then AG Christian Porter, five years after the pair had been raided in relation to the matter.

While Witness K decided to plead guilty to conspiracy to reveal classified information and received a suspended sentence last year, former ACT attorney general Collaery has vowed to fight his charges and the circumstances of his case have consistently become more Kafkaesque as it proceeds.

There are ongoing disputes over the prosecution wanting to present “court-only evidence” that can’t be viewed by Collaery or his lawyers. This had been on the proviso that a special counsel be appointed to examine it on his behalf, but the government now wants to renege on this condition.

Support for dropping the Collaery case is strong in the community, and the constant calls from government for further secrecy around the case are only heightening his cause, with institutions, such as the ACT Bar Association, having called for the case to be brought to an end.

Punishing the messenger

The final recommendation of last May’s Senate Inquiry Into Press Freedoms report was that the prosecution of former ADF lawyer David McBride, in relation to his having exposed Australian war crimes in Afghanistan, be urgently reconsidered “on strong public interest grounds”.

McBride’s prosecution is yet another score the Coalition wanted to settle, despite the fact that the lawyer had followed the correct procedures set out in the Public Interest Disclosure Act 2013 (Cth), before going to the press.

The PID Act stipulates that a whistleblower can go public after internal disclosure channels have been exhausted or proven unsuccessful.

Although, Dreyfus is yet to comment on whether McBride’s case will be one of the matters he’ll be calling for an urgent briefing in relation to.

The Brereton report was published by the Coalition in December 2020. It uncovered Afghan war crimes similar to those revealed by McBride. The inquiry identified 36 matters to be considered for criminal investigation, yet the ex-military lawyer continues to be the only one charged.

Greater protections likely

During a brief stint as federal attorney general in 2013, Dreyfus drafted and oversaw the passing of the PID Act, which failed to protect McBride, as well as former ATO officer Richard Boyle, who publicly exposed questionable tax office practices after his internal disclosures proved unfruitful.

The public interest disclosure laws have been known to be lacking since the statutorily required Philip Moss inquiry released its 2016 report, which made 33 recommendations, on which the Coalition failed to act upon, even waiting until December 2020 to respond to the report.

Soon-to-be reappointed attorney general Dreyfus, however, did promise last October that an elected Labor government would act upon the Moss recommendations, as he’d always understood that the PID regime would need honing after it had been assessed.

So, while there’s a real chance that the Collaery case, and potentially those of McBride and Boyle, could dramatically change with the appointment of Dreyfus to the position of AG, it’s yet to be seen whether Albanese has the guts to speak up and save the life of Julian Assange.

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If Assange Is Sent to the US, He Will Die, Pilger Says, as Australia Continues to Collude

“I don’t think there is any doubt in my mind, as there is no doubt in the minds of his loved ones, that if Julian goes to the United States, and is effectively dropped in a penal hellhole, that will be the end of him,” Australian journalist John Pilger said over the weekend. “Literally, he will die.”

Veteran Australian journalist John Pilger, a long-time supporter and friend of Julian Assange

These sentiments were expressed just three weeks after UK home secretary Priti Patel officially signed off on the Australian’s US extradition. And as the legal avenues to challenge grow slim, Julian’s lawyers have filed to appeal the decision to the UK High Court.

Assange has been locked up in London’s Belmarsh Prison since 14 April 2019, and there have long been concerns that he may take his own life.

Even so, the US had made clear early on that it was planning to incarcerate him under its “special administrative measures” regime, which involves extreme isolation and other restrictions usually reserved for terrorists.

On 4 January 2021, the Westminster Magistrates Court ruled against the extradition, as it found the US couldn’t guarantee Assange’s life in its prison system.

But Washington went on to provide four assurances, asserting that it wouldn’t subject Julian to the SAMS regime, unless his behaviour warranted it in the future, and further it would allow him to serve his time in Australia. And, on appeal, the High Court overturned the ruling.

Although, many don’t trust these US guarantees, especially as it was revealed last year that the White House had discussed kidnapping the journalist from London’s Ecuadorian Embassy, where he sought refuge for seven years, and further, it even flagged assassinating him.

For the crime of journalism

“If Julian is extradited to the United States, I think it will effectively end real independent investigative journalism,” Pilger told Yonden. “Who will take that risk again?”

The White House is pursuing Townsville-born Assange over his having published around 700,000 classified US government documents over 2010-11, which exposed numerous American crimes in Iraq and Afghanistan, along with questionable diplomatic practices.

These documents were leaked to Assange by then US army officer Chelsea Manning. And Julian followed regular journalistic practices in publishing them, after he’d redacted the files to ensure lives weren’t endangered. And some of the most respected global newspapers also printed the secrets.

Then, in April 2019, the US reached across international borders to have the Australian arrested and later remanded on its behalf.

Washington subsequently produced an 18 count espionage indictment, which sees the WikiLeaks founder, who committed no crimes, while his acts of journalism were carried out on foreign soils, is facing a joint maximum penalty of up to 175 years behind bars.

Indeed, many question the extraterritoriality the US has used in attempting to pluck Assange from a foreign nation for publishing outside of its borders, yet the department of the UK home secretary, who approved extradition, is pushing for local “unofficial disclosures” laws to facilitate such moves.

A UK Home Department inquiry has recommended that exposing classified information should be punished in a similar manner to espionage. And those making such disclosures be dealt with like spies, in a move that would allow for the prosecution of non-British citizens for such behaviour.

Canberra’s silence

“Anthony Albanese has said ‘enough is enough’,” continued Pilger, citing a 2021 statement regarding Assange. “He doesn’t mention that in fact the man has committed no crime, and this is a journalist fighting for his life and for the right of real journalism to publish the truth about governments.”

The new Australian prime minister made these comments in early 2021. And since taking the top office this year, Albanese said in response to a question about the Australian journalist on 31 May that his “position is that not all foreign affairs is best done with the loud hailer”.

However, three weeks after the new leader suggested his government was doing some backdoor diplomacy in Assange’s favour, Patel greenlighted the extradition, and his Australian supporters are questioning how seriously the PM is taking his effort to see the case dropped.

According to Pilger, its simply the same line successive Australian PMs have been taking in regard to the Australian journalist since he first sought refuge in the Ecuadorian embassy in June 2012, and he likened it to the position this nation is taking in terms of blindly following the US into war with China.

“This was an Australian responsibility. The man is an Australian,” Pilger underscored. “Does nationality mean nothing?”

“Well, apparently, it means nothing, because Australia has not only done nothing, it has colluded with the United States to keep Julian where he is.”

[anotherbadboy]

Man Acquitted of Police Killings After 22 Years Behind Bars

A man who was convicted of killing two police officers has been acquitted after spending 22 years behind bars. 

Jason Roberts was just 17 years old when Victorian police officers Gary Silk and Rodney Miller were murdered at Moorabbin, 15 kilometres south-east of Melbourne’s CBD, in 1998.

Four years later in 2002, a jury found Mr Roberts and Bandali Debs, who was the father of Roberts’ then girlfriend, guilty of murdering both of the officers. The judge then sentenced each of the men to life imprisonment.

Acquittal

But last week, Mr Roberts was formally acquitted of the murder convictions after a retrial in the Supreme Court of Victoria. 

The retrial was ordered by the state’s Court of Appeal in 2020, which made the decision in light of fresh evidence that “improper police practices” were used to base the charges and secure the convictions.

Mr Roberts has now walked free from prison after a long battle to prove his innocence, and due to the operation of the doctrine of double-jeopardy, the prosecution will be unable to retry him.

Police misconduct tainted original trial

The Appeal Court’s order for a retrial followed an investigation by the Independent Broad-based Anti-corruption Commission into reports that a number of officers who were with Officer Rodney Miller as he lay critically injured, had doctored and backdated their witness statements.

The retrial has been running since March this year and included more than 90 witnesses, 200 exhibits and several hours of recorded conversations. 

The Supreme Court jury took five days to find Mr Roberts not guilty of two charges of murder, in a trial the judge described as “the hardest case” he had seen for a jury. 

His Honour granted the jurors a lifetime exemption from jury duty for their efforts. 

The facts of the case

On the night they were killed, officers Gary Silk and Rodney Miller were investigating a series of armed robberies that had allegedly been committed in at least ten restaurants in and around Melbourne over a seven-year period. 

The officers were gunned down at close range as they were staking out a Chinese restaurant at around midnight. 

Officer Silk died instantly, while officer Miller stumbled to the restaurant where he collapsed on the footpath. 

Officer Miller allegedly told back-up officers as they arrived at the scene that two people were responsible for the shootings, one of whom was on foot, 

The officer died hours later in hospital. 

Defendant maintains innocence

Mr Roberts has always maintained he was with his girlfriend and planning his own birthday party on the night the shootings occurred. 

Although he initially professed his innocence in relation to both the robberies and the murders, Roberts has since pleaded guilty to robberies committed with Mr Debs in the period leading up to the killings.

However, he has always been adamant that he was not with Debs on the day of the shootings.

During the retrial, Roberts’ legal team argued that conducting robberies on different days in the company of Mr Debs did not make their client a killer.

Life in prison

Mr Roberts was originally sentenced to a full-term of life in prison and ordered to serve at least 35 years of the sentence before becoming eligible to apply for release on parole. 

However, in 2016, the Victorian Government introduced laws which mean that anyone convicted of murdering a police officer would never be granted parole, and the law had retrospective operation, meaning he would spend the rest of his life behind bars.

To be sentenced for robberies

Mr Roberts has now been granted bail in respect of 10 charges of armed robbery, to which he has pleaded guilty, and is expected to be sentenced for those offences in September this year.

In Victoria, armed robbery is an indictable offence that carries a maximum penalty of 25 years’ imprisonment and/or a fine of up to 3,000 penalty units.

His lawyers will almost certainly argue that the time their client has served is sufficient for the purposes of his sentence.

Possible civil claim

While the verdict puts an end to one of the most significant chapters in Victoria Police history, the legal battle is not yet over. 

Experts have suggested that Mr Roberts may have a civil claim against the police, should he choose to pursue it, because the replacement of original witness statements was “tantamount to a manipulation of the evidence”.

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NSW Police Accused of Covering Up Killing of Mentally Ill Man

In 2019, 40-year old Todd McKenzie was fatally shot by police while he was having a psychotic episode. 

He was alone and armed with a knife when officers forced their way into his home in Taree on the New South Wales Mid North Coast before shooting him dead.

In the three years since, his family has been eagerly awaiting answers – answers they hoped would be provided by the Coronial Inquest into his death.

To their great frustration, the process has been stalled by endless ‘delays’ and roadblocks by the New South Wales Police Force, and its internal investigators in particular, which have been accused of covering up the incident and protecting the officers involved, rather than fulfilling their stated objectives of providing a fair, independent and transparent process aimed at uncovering the truth of what occurred.

More questions than answers

‘Police originally claimed that Mr McKenzie was shot after allegedly lunging at them with the knife. 

At the time of the shooting, then Assistant Commissioner, Max Mitchell, asserted that police had been concerned for Mr McKenzie’s welfare and tried to use non-lethal weapons to stop him.

The statement was vague and raised more questions than it answered. Mr McKenzie was alone, locked in his home and armed with a knife when police negotiators were called in. 

After hours without progress, officers from Tactical Operations – a specialist police unit – forced its way inside and, moments later, Mr McKenzie was shot dead.

The burning questions have always been that if the man was alone and locked inside his own home, why did several heavily armed officers need to force their way in? Why did they have to go in at all? And while there, why couldn’t these trained officers, with their body armour, strength in numbers and non-lethal weapons, subdue the man rather than lethally shoot him?

Police fight to suppress information 

As required by the law, a critical incident investigation was launched after the killing. This is an internal investigation by police.

Relying on statements obtained through that inquiry, the NSW Coroner also began investigating. 

Then NSW Police Commissioner, Mick Fuller, asked to keep some of the evidence out of the coronial investigation, or at least suppressed from the public, citing public interest immunity laws. 

The Coroner refused. The Commissioner then took the matter to the NSW Supreme Court. 

It has reported that police wanted to keep secret the details of tasers used by a certain group of officers – tasers which are different from those used by police officers deployed in general duties. 

Police also asked to suppress specific training undertaken by “certain officers” including the weapons they could access.

Change in top brass

Since Mr McKenzie’s death there has been a change in the top brass at NSW Police.

Karen Webb has taken over from Mick Fuller, and Mark Walton has taken the position of Assistant Commissioner, after Max Mitchell retired last year.

In an affidavit tendered in the Supreme Court, Mr Walton claimed that divulging the information sought by the coroner could compromise the safety of two or three police units, and could even “lead to an increased risk of a terrorist attack.” 

But the court ruled against the claim of ‘public immunity’, ruling it was in the public interest for all evidence to be disclosed to the Coroner in order for their to be a full and proper investigation.

The ruling also directs the NSW State Coroner to revisit claims for public immunity in other areas. 

This is a good start in terms of preventing police from consistently relying on ‘public immunity’ to hide relevant evidence from other investigative bodies, and indeed from the public.

And while it doesn’t signal absolute transparency, Todd McKenzie’s family is now likely to see a great deal of the ‘secret’ information, even if the public will not. 

For the family though, there is still a long way to go before they can truly understand what happened the night Todd McKenzie was shot. 

Without the full information, and indeed justice for any wrongdoing, it is difficult for the family to fully grieve and move forward, and they have often expressed their frustration with police ‘roadblocks’ – obstacles that include court appeals. 

Coronial Inquest 

The Coronial Inquest will examine what police resources were deployed to Mr McKenzie’s home, the role of police negotiators, whether a psychiatrist at the scene may have been able to help, and whether lethal force was justified.

 It will also make recommendations for change so that if nothing else, we can learn from Mr McKenzie’s death at the hands of police, and work towards stemming the tide of fatalities. 

Statistics show that about 50% of the fatalities during police operations over the past 20 years have involved people with mental health issues. 

The family is also continuing to advocate for the introduction of the PACER (Police, Ambulance & Clinician Early Response) in regional areas of NSW. 

The programme involves mental health specialists and ambulance officers working with police on the front-line. Not only would such a programme provide police with a range of resources in critical situations, but make them more accountable and less able to ‘hide’ by closing the ranks on full disclosure. 

[anotherbadboy]

By Zeb Holmes and Ugur Nedim

Under both the common law and professional conduct rules, Australian prosecutors are required to serve upon the defence all material in their possession that is relevant to determining the guilt or innocence of the defendant.

That requirement extends to material that is adverse to the prosecution case, and is fundamental to ensuring the defendant receives a fair trial.

The duty of disclosure was recently in the media spotlight due to an investigation into the Keli Lane case, where the prosecution was accused of withholding relevant evidence from the defence.

Keli Lane case

In 2010, former Australian water polo player Keli Lane was convicted of murdering her newborn baby Tegan.

Her final application for appeal was rejected by the High Court of Australia in August 2014.

But a recent investigation suggested serious abuses of police powers and even claims of prosecution failures to meet professional obligations – due to an estimated 2,000 intercepts of Ms Lane’s telephone communications being withheld from the defence – a state of affairs which came to light as a result of efforts by the Bridge of Hope Innocence Initiative.

The Initiative has now made a freedom of information request to access the undisclosed recordings, with a view to determining whether they may suggest Ms Lane’s innocence.

Australian law

In the High Court case of Mallard v R (2005), Justice Kirby explained there is a common lawrequirement in Australia for the prosecution to provide the defence with all material which, “…may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused”.

That case concerned the wrongful conviction in 1995 of Andrew Mallard, in circumstances where the prosecution failed to serve a series of crucial exculpatory evidence upon the defence.

Mr Mallard was exonerated after spending 12 years behind bars, when among other things it came to light that another man’s palm print was found at the crime scene.

Professional conduct rules

The law regarding the duty to disclose is reflected in professional conduct rules throughout the country.

For example, rule 29.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that:

“A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.”

The rule is mirrored in rule 87 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which means it applies equally to prosecuting barristers – known as ‘Crown Prosecutors’.

What needs to be disclosed?

Information that is ordinarily subject to disclosure includes:

Statements of witnesses, whether or not the prosecution intends to call them to testify in court,

Advance notice of any discrepancies between what is contained in witness statements and the evidence to be led,

Information that calls into question the credibility of witnesses, including their criminal record where relevant,

Expert evidence, including forensic and medical evidence,

Relevant transcripts of interviews, video and audio recordings, photographs, telephone and listening device intercepts, and

All other material that might tend to suggest that the accused person is innocent.

UK investigation

A recent report by a House of Commons Select Committee found that “disclosure errors” were widespread throughout the United Kingdom’s criminal justice system.

The report found that police fully complied with their disclosure obligations in only 734 out of a snapshot of 1,290 cases, or just 56.9% of the time.

Prosecution compliance was “not much better than that of the police”, with prosecutors meeting their obligations in just 557 out of 954 cases, or 58.4% of the time.

The report found a common but mistaken belief amongst prosecutors that compliance is “common courtesy” rather than a legal requirement, and that many saw themselves as having a duty to achieve a conviction rather than understanding that their job is to promote justice.

The report recommended:

a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on,

teaching the skills required to review large amounts of material, and

providing clear guidelines on handling sensitive material.

Many feel Australia would do well to adopt those recommendations, in order to avoid the devastating impact of wrongful convictions.

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Man Released Due to Lack of Prison Resources

This is the reason we have no rights left cause the media jump on shit like this and they make it hard for the rest

In the latest example of the effects of prison overcrowding, a District Court judge has been forced to release an alleged drug supplier on bail due to a lack of resources in prisons and remand centres.

The unnamed man appeared before Judge Paul Conlon at the Downing Centre District Court in relation to charges of supplying ‘ice’.

His Honour was minded to revoke the man’s bail after he turned up to court two hours late, but after his associate made inquiries with prisons across the state during the luncheon adjournment, he was informed that there was no prison or remand centre that could conduct a mental health assessment on the man. Accordingly, the Judge was forced to release him back into the community for assessment.

The Judge Conlon remarked in open court:

‘It appears we have reached a point where the wheels of justice not only have had the brakes put on by virtue of this untenable position concerning the lack of custodial accommodation but so dire are the consequences in respect of this case that the wheels of justice have been prevented from even rotating.’

Corrective Services NSW hit back at the claims, saying that there were 20 spare beds at the Surry Hills remand centre. But his Honour slammed that statement, saying:

‘Fortunately as a judge I’m not in the business of spin so that means I can tell it as it is…If someone from Corrective Services wants to come into court and tell me that it was possible for him to receive a mental health assessment in the holding cells of Surry Hills, well I will welcome them into the court and I will apologise profusely.’

In Police Holding Cells with Nowhere to Go

The prison overcrowding issue is so dire that some bail courts have been forced to close their doors due to a lack of prison space.

On October 30, Parramatta Bail Court was closed for the first time because prisons are so overcrowded that are unable to accept new inmates from police custody.

Around 40 people who were arrested the previous night were unable to have their bail determined, and were forced to remain in police custody at the Surry Hills Remand Centre and Amber Vale Correctional Centre. This is despite legislation stating that an accused person who is refused bail by police must be brought before a court ‘as soon as practicable’.

Corrective Services responded to the situation by saying that:

‘Delays in receiving offenders occasionally occur. In these cases offenders are held temporarily in court and police cells until prison beds are available. Corrective Services NSW has short, medium and long-term strategies to meet the demands on the prison system as the number of inmates increases.’

A System in Crisis

Labor leader Luke Foley has criticised the NSW government about the current prison situation, saying that the justice system is in crisis.

And Corrections Minister David Ellis is facing renewed pressure since the man was released on bail – the incident just the latest in a series of embarrassing situations for Corrective Services, following several prison breakouts in recent months.

But Mr Ellis has backed the Department’s statement, saying that there is space for more inmates and denying that prisons have ‘closed their doors.’

He has promised that an additional 181 beds will be placed into prisons in coming weeks, saying that increased demand is a reflection of ‘stronger law enforcement and sentences which reflect community expectations.’ However, Mr Ellis has not explained where these beds will be installed and there are fears that placing them into existing space will simply add to the problems associated with overcrowding.

At the end of the day, it appears that concerns expressed in previous blogs about the impact of tougher bail laws and mandatory sentencing regimes are gradually being realised.

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Australian Government’s Attack on Civil Liberties

Government has attracted widespread criticism from civil liberties groups, after passing new ‘anti-protest’ legislation in parliament this week. The new laws, passed on Tuesday, will see increased penalties for protesters at mining and coal-seam gas sites, and further discretion for police to issue ‘move on’ orders to protest groups.

Since taking office in 2011, the current government has overseen an unprecedented attack on civil liberties across the state – including dismantling the right to silence and freedom of association. While the anti-protest laws are their most recent attack, it’s worth looking back and reflecting on some of the safeguards and freedoms affected in the past five years.

Here’s a thumbnail sketch of just a few of the measures:

1. Police told to “shoot first, ask questions later”

Last year, it was announced that the NSW police would adopted a “shoot first” policy in response to potential domestic terror threats.

The policy gives police the green light to shoot people they feel may be armed terrorism suspects on sight.

Critics have pointed to the dangers inherent in this approach, asking questions like: how can police immediately know someone is a ‘terrorist’ rather than mentally ill? And how might this endanger innocent lives?

Critics point to several examples of the potential danger, including an incident in 2005 where the London Metropolitan police, operating under the same policy, killed an unarmed Brazilian man on the subway, after wrongly suspecting him of terrorist involvement.

Many believe that a proper assessment should be made of a situation, rather than ‘shooting first and asking questions later’.

2. Presumption of innocence reversed

In September 2014, the NSW Parliament amended the new Bail Act to introduce ‘show cause’ provisions – so that defendants now need to prove they should be released on bail for over 900 offences and situations, even if they do not pose an unacceptable risk to the community, and the evidence against them is not strong.

Since the changes, the state’s prison population has expanded to a record high of 12,121 prisoners, wasting millions of taxpayer dollars imprisoning people who are awaiting trial – many of whom are innocent.

The presumption of innocence has also been reversed for a number of offences, and in a range of Commissions and Tribunals.

3. Police no longer required to give name and place of duty

Since 2002, police have been required to provide their name and place of duty when exercising certain powers, such as arrest and search.

This changed in 2014, when the Government amended the Law Enforcement (Powers and Responsibilities) Act 2002.

Under the changes, police are still required to provide their name and place of duty, however, their refusal to do so can no longer be used in court to find their use of power invalid.

There are concerns that this undermines police transparency and accountability.

4. Indefinite Extension of Prison Sentences

In 2013, New South Wales became the first Australian jurisdiction to allow the indefinite extension of sentences for inmates deemed to be “high-risk violent offenders”.

Under the Crimes (Serious Sex Offenders) Amendment Act 2013, inmates who are not seen to be sufficiently “rehabilitated” may have their sentences extended, regardless of the initial crime.

While the Government has argued this scheme is necessary to protect people from potentially violent re-offenders, introducing penalties for something someone might do undermines the notion that you should only be punished for what you’ve done wrong, a fundamental tenet of our criminal justice system.

It also creates an opportunity for prison officer corruption.

5. The Right to Silence removed

In 2013, the caution read out by police when a suspect is arrested for a serious offence (which attracts at least 5 years of imprisonment) was altered to remove the right to silence if a lawyer is present.

Where previously, anyone arrested was told: “You are not obliged to say or do anything unless you wish to do so”, police now tell arrested person that: “It may harm your defence if you fail to mention something now that you later rely on at trial.”

The move has made police very happy by ensuring that lawyers stay out of police stations and are therefore unable to be present to protect their clients’ rights.

It has increased the power disparity between police and those under arrest.

6. Police allowed to perform warrantless searches

In November 2013, police were given new powers to to perform warrantless searches in the homes of people they suspect to be in breach of a Firearms Prohibition Order (FPO).

The powers extend to any premise or vehicle that the person occupies, controls or manages, and were ostensibly introduced help police find firearms and related items, and allow police to conduct an FPO search at any time, as long as the search is ‘reasonably required’ to determine whether the person has committed an offence by using a firearm, or by acquiring or possessing a firearm, a firearm part or ammunition.

Critics believe they are being used to harass members of the public without any evidence they are doing anything wrong.

7. Guilt by association

Under the provisions introduced with the Crimes Amendment (Consorting and Organised Crime) Bill 2012, it is now an indictable offence to habitually consort with convicted offenders after receiving a warning from police.

Although this bill was introduced to give police the power to break up organised crime, it has been criticised for criminalising association, rather than criminal activity itself.

Anyone can be warned or charged with consorting, which can even include communicating by Facebook or text.

8. Removal of spousal privilege

The Crimes Legislation Amendment Bill 2012 removed the centuries-old principle of ‘spousal privilege,’ that had protected people from prosecution for failing to dob in their spouses.

In many places ‘spousal privilege’ exists in recognition of the trust and confidence shared between partners, however the change has made it a blanket rule that, regardless of the circumstances, partners can be charged for not providing evidence against their partners to the police.

These are just a few of the hundreds of laws that curtail privileges and safeguards in NSW which – together with a raft of deeply concerning Federal laws – have led to renewed calls for a Bill of Rights.

[anotherbadboy]

RIP Presumption of Innocence: Gone In Australia

By Sydney Criminal Lawyers

We have written extensively about our state’s tough new bail laws, which have seen the NSW prison population skyrocket, causing overcrowding and associated problems.

NSW is not the only state to get tough on bail – similar trends are being experienced by other Australian states and territories, with government’s intent on making it increasingly difficult for suspects to remain at liberty while awaiting trial.

Whereas the ‘presumption of innocence’ was once seen as a fundamental component of our liberal democracy, the pendulum has certainly shifted towards making accused people prove their own innocence before they can be released from custody; and voters appear to support that shift.

Northern Territory Gets Tough on Bail for Children

Now, the Northern Territory Country Liberal Party (CLP) has proposed changes to bail laws which would make it harder for children who are arrested to return home to their families.

Chief Minister Adam Giles is seeking amendments to make it harder for children charged with malicious damage to achieve bail. Giles posted on Facebook, “Enough is enough. We give rogue youth every chance, but they still break in to our homes, smash up our cars and cause trouble.”

Young Territorians Minister Nathan Barrett supports the move, stating “can we stop talking about the kids for just a minute and start talking about the community who we’re supposed to be protecting?”.

Criticism

Norther Territory Children’s Commissioner Colleen Gwyne is one of many critical voices.

She is of the view that locking children up will do more harm than good, and that a preventative approach to youth offending is more effective. “Detention actually teaches young people to be better criminals and re-traumatises kids who have already been abused or come from dysfunctional families,” Ms Gwyne said.

Many have highlighted the ineffectiveness of the NT’s punitive model. The territory currently imprisons children at five times the national rate, and reoffending is a significant problem. Principal Lawyer at the North Australian Aboriginal Justice Agency, Jonathan Hunyor, is critical of the territory’s current approach:

“It’s actually very easy to let off a spray and talk tough, but we’ve been doing that for decades,” he said. “If it was working then by all means do more of it, but it’s been an absolute failure and promising more of the same isn’t leadership.”

NT Labor Leader Michael Gunner says his party would fund evidence-based prevention measures, such as education and diversionary programs. He has committed an additional $124 million to schools over four years, $32 million of which would go towards addressing disruptive behaviour through counselling and support services, and providing specialist assistance to students with mental and physical health issues.

Amnesty International believes the proposed laws undermine the territory’s international obligations towards children. Indigenous Rights Campaigner at Amnesty International, Julian Cleary, says “With this announcement we’re seeing the same old, same old tough-on-crime approach that has failed in the past and will continue to fail the people of the Northern Territory”.

Country Liberal Party’s Criminal Justice Record

The CLC has had a disastrous track record when it comes to imprisonment and reoffending rates.

In the 1990s, the party introduced a mandatory sentencing regime that led to a significant growth in imprisonment rates. Over the first two years, daily average prisoner numbers grew by a whopping 31%.

At the same time, reoffending rates increased and the CLS’s ‘tough on crime’ policies have cost the territory in both economic and social terms.

Questions have also been raised about whether the new bail laws are required at all, or are just another vote grab by the party. Since the last financial year, overall property crime in the NT actually fell by 4.8%.

Overcrowding in NT Prisons

The territory continues to experience significant problems with prison overcrowding.

The NT’s imprisonment rate is the highest in the nation: 838.3 for every 100,000 people, compared with 187.3 nationally.

The over-representation of Indigenous juveniles across Australia (24 times the rate of the general population) is magnified in the territory, where 96% of incarcerated kids are Indigenous, while only 31.6% of the population is Indigenous.

Imprisoning children can pull them further into a life of crime. A review by former head of Long Bay prison, Michael Vita, describes the juvenile system as “a climate of daily crisis” with a “lack of adequate training among the largely casual staff”, “nonexistent, outdated and inadequate” detention practices, and little consistency.

In September 2015, the NT government released the Children’s Commissioner Report, which found that young people in detention were often subjected to “inhumane” solitary confinement, inappropriate use of restraints and unlawful transfers to the adult prison.

A whopping 60% of the territory’s child detainees are on remand awaiting the finalisation of their cases, and the proposed new laws promise to increase this figure. Each child held in custody costs the NT taxpayer $698.40; a figure which is far higher than detaining an adult, and far less than investing in programs aimed at addressing risk factors associated with crime, such as mental health support services, drug and alcohol programs, targeted education and employment support.

While initiatives like justice reinvestment have proven to reduce crime in troubled communities through investing in risk factors, there appears little hope that such evidence-based programs will be broadly implemented in the territory anytime soon – after all, Chief Minister Adam Giles is the same person who stated that those who misbehave in custody had “given up their opportunity at a second chance at life.”

[anotherbadboy]

NSW Police Use Anti-Protest Laws to Monitor Tour Groups

By Sydney Criminal Lawyers

By Paul Gregoire and Ugur Nedim

Over a weekend in February, a tour group visiting areas threatened by mining in the Upper Hunter was placed under NSW police surveillance. This apparently unwarranted monitoring – reminiscent of totalitarian regimes like North Korea – seems to be yet another attempt to suppress potential dissent under the Coalition’s anti-protest regime.

The Lock the Gate tour comprised city-based residents visiting communities and areas impacted by the Hunter coal-mining industry. The promotional material for the tour lists a series of meetings with local residents. And there’s no mention of any plans to protest.

However, NSW police took it upon themselves to label the tour a ‘protest group’ and actively monitor its movements. Convoys of up to four police vehicles were shadowing tour participants for hours on end on both February 3 and 4.

The use of the laws shines a light on the state government’s interests, particularly its pro-mining stance, which is effectively putting residents of, and visitors to, areas that are heavily owned by multinational mining corporations at risk of targeting and even criminal prosecution.

Occupied territory

Lock the Gate spokesperson Steve Phillips recalls that the tour first encountered police in Wollar in the far Upper Hunter. “Police vehicles began frequently driving by our tour group, and then a convoy of police vehicles appeared to follow our tour bus as we left Wollar,” he said.

As the group made their way to a nature reserve area in Ulan, known as the Drip, officers followed. “About half a dozen police vehicles, including a police rescue outfit, followed us into the parking lot at the Drip and stayed there for over an hour observing our tour group,” Phillips continued.

The tour organiser said Mudgee police inspector Jeff Boon approached him and asked what the group were up to. “I told him we were hosting an information tour and observed that there was really no reason for the police to be there,” Mr Phillips told Sydney Criminal Lawyers.

“Nevertheless, the police were waiting for us at our next stop, Bylong,” he added.

NSW police has since stated that it’s appropriate to monitor the “actions of protest groups during planned events.” However, it gave no evidence as to why they labelled those on tour as a protest group.

Far from reasonable

NSW Council for Civil Liberties vice president Pauline Wright said that “lawful protest is a right that we have as a democracy.” And even though “there are certain restrictions,” in this case, there was nothing to warrant police having a “reasonable suspicion that there would be any unlawful protest.”

“People should be free to go about lawful activities – like being part of a guided tour – without being subject to police surveillance,” Ms Wright outlined. And she questioned why police resources weren’t being directed towards serious crime, rather than “normal, lawful business.”

According to Ms Wright, there’s no doubt the new anti-protest laws were behind what the police saw “as a reasonable apprehension that a crime might be about to be committed.” And she added that these laws have implications for “people’s ability to have freedom of political communication.”

Silencing dissent

Back in 2014, then NSW premier Mike Baird told a NSW mining industry dinner that his government was going to “crackdown” on those who choose to break the law when they protest. And he singled out “protesters who unlawfully enter mining sites.”

A little over a year later, the Coalition government followed through with the premier’s promise when it passed a series of harsh anti-protest laws, under the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016.

The legislation created the new offence of aggravated unlawful entry on inclosed lands. Section 4B of the Inclosed Land Protection Act 1901 provides that interfering, or attempts to interfere, with the conduct of a business on enclosed land can land a protester with a fine of up to $5,500.

Under the provisions of the bill, police were provided with additional powers to stop, search, detain, and seize the property of protesters, as well as being given the power to shutdown a peaceful protest if it is obstructing traffic.

And the bill also inserted a definition of mine into section 201 of the Crimes Act 1900, so that the offence of interfering with a mine includes coal seam gas exploration and extraction sites. This offence carries a maximum penalty of seven years imprisonment.

The Wilpinjong Three

Bev Smiles, Bruce Hughes and Stephanie Luce are the first people to be up on protesting charges since the laws were changed. In April last year, the three were arrested for protesting outside the Wilpinjong coal mine in Wollar.

The three are up on charges of rendering a road belonging to a mine useless and hindering the working equipment belonging to a mine. These are both offences that carry the penalty of seven years imprisonment.

When the trio appeared at Mudgee Local Court on February 9, the presiding magistrate rejected police claims that the Wollar-Ulan Road, where the defendants were arrested, actually belonged to the mining company.

“They have pleaded not guilty, and are awaiting a judgment on the case,” Mr Phillips explained. “The outcome of that case will be important.” If the three have “the book thrown at them” then it’s likely to discourage the protesting of coal mines in NSW.

An unconstitutional clampdown

And Ms Wright also warns of the stifling effect that the new anti-protest laws are likely to have upon demonstrations. “People are right to be concerned,” Ms Wright told Sydney Criminal Lawyers. The laws “will have an impact on their decisions as to whether they are going to protest or not.”

The solicitor pointed to last year’s High Court of Australia decision that found parts of the 2014 Tasmanian anti-protest laws were unconstitutional in terms of breaching freedom of political communication. And she added this decision could have implications for the NSW laws.

This attempt to silence protest is something that all citizens should be worried about, Ms Wright concluded. “If we don’t feel that we can stand up and say that we are concerned about an activity… for fear of being charged with a criminal offence for doing so, that is going to have a chilling effect.”

[anotherbadboy]

Top Cop’s Bigoted Social Media Posts Uncovered

By Kieran Adai

One of Victoria’s top police officers resigned this week, after it was discovered he was responsible for a series of bizarre racist and sexist rants posted to YouTube.

Brett Guerin, the head of Victoria Police’s Professional Standards Command and Assistant Commissioner for the state’s police force, tendered his resignation after the state’s anti-corruption commission announced it would begin investigating his social media posts.

One string of comments regarding a video of a Somali pirate attack read as follows:

“I’m afraid this is what happens when the lash is abolished. The jigaboo runs riot and out of control.

The ‘boo needs the lash. The ‘boo wants the lash.

Deep, deep down the ‘boo knows the lash provides the governance and stability”.

But the Assistant Commissioner’s remarked, made under a pseudonym, weren’t limited to racial slurs.

Commenting on former Victorian Police Commissioner Christine Nixon and former police union boss Paul Mullet, with whom he had disagreements, Guerin wrote:

“She [Nixon] bent the Mulletmeister [Mullett] over and slipped a rather large schlong up his date courtesy of the Supreme Court’s decision this morning.”

Questions about Mr Guerin’s decisions

Legal advocates are now asking questions about the integrity of decisions made by Guerin during his time as head of the Professional Standards Command.

Staff from the Flemington and Kensington Community Legal Centre have announced they will be reviewing a number of racial profiling complaints they believe may have been dismissed unfairly.

“In my research I spoke with and heard the testimonies of many African-background young men, their lawyers and their social workers, who described outlandish acts of gratuitous violence and being persistently hailed by police as either ‘black dogs’ or ‘black c—s’.” Tallace Bissett, a doctoral candidate at the University of Melbourne, wrote in The Age.

Not the first time

Although it is particularly concerning that the officer responsible for making decision about complaints and ethics was posting such inappropriate comments, Mr Gueren certainly isn’t the first officer to be in trouble over offensive social media posts.

In 2016, several New South Wales Police Officers were caught harassing Newtown MP Jenny Leong over her criticism of drug sniffer dogs – resulting in at least one suspension.

In 2013, Victoria Police settled out-of-court with a group of almost 20 young African-Australian members, after officers racially profiled, harassed and assaulted members of the group.

These incidents raise concerns about a broader culture of bigotry within police forces across Australia.

Victorian police distance themselves

Victoria Police Chief Commissioner Graham Ashton has since described Guerin’s behaviour as “abhorrent”, and “completely and utterly unacceptable at Victoria Police”.

“It goes without saying, it’s that’s obvious, it’s behaviour that is well, well below the line of expectation,” he said during a media conference.

“We’ll be talking to the broader multicultural community today and making sure they know those views in no way represent what Victoria Police is about.”

Mr Guerin offered his apologies for the comments, stating: “It’s certainly crude, coarse, not the type of language I want my mother to hear or read about, or my daughters… But they have, and there’s one person to blame for that, and you’re looking at him.”

Acting Victorian Premier James Merlino also spoke out about the comments, labelling them “extraordinarily offensive”, and commending Guerin for standing down.

“The community expects the highest ethical behaviour of every member of Victoria Police,” he said. “These comments were extraordinarily offensive, out of line, and the appropriate action has taken place.”

However, Ashton praised Guerin’s achievements as head of the Professional Standards Command, stating: “he has been leading integrity reforms across Victoria Police, and we’ve been seeing really good results with that. Complaints against police are down, the work that he’s been doing in integrity reforms has been going really well for us.”

Police culture

Reviews of South Australian, New South Wales and Federal Police culture has found significant issues with sexism, racism and bullying in workplace culture.

The South Australian review described the state’s police as a “boys club”, finding that almost half of those interviewed reported experiencing harassment and/or sexual discrimination within their workplace.

Reviews of the Australian Federal Police and New South Wales Police Force found widespread instances of bullying, homophobia and sexism.

Several official bodies and independent experts have criticised a system whereby police are effectively policing themselves, calling for a truly independent body to review police conduct and complaints from both within and outside the institutions.

As more information surfaces about Guerin’s online postings, Age editor Alex Lavelle has argued for a more thorough investigation of the State’s Police:

“Without a purging examination of police culture, public faith is unlikely to be restored. And how are junior members of the force supposed to have faith in decency and probity when the man who was in charge of the force’s decency and probity is linked to such vile views?”

[anotherbadboy]

Should Businesses Contribute to Legal Aid Funding?

By Sydney Criminal Lawyers 

By Blake O’Connor and Ugur Nedim

Unlike in the United States, there is no general right in Australia to a defence lawyer for those who cannot afford it.

In fact each year, tens of thousands of people across the country find themselves in the ‘justice gap’ – where they cannot afford private legal representation but are ineligible for legal aid funding or assistance from a community legal centre.

As the Law Council of Australia explains:

“At least 45,000 Australians have been forced to represent themselves in court, often up against powerful and well funded legal teams, due to the crisis in legal aid that has seen hundreds of millions of dollars ripped from these vital services”.

This ‘justice gap’ continues to grow in Australia because government funding for vital legal service is being significantly outstripped by demand.

The potential implications are that more and more innocent people are pleading guilty for fear of having to represent themselves in court, or are unfairly being found guilty due to their lack of an effective defence.

The situation has now led to calls for businesses associated with criminal activity, such as pubs and casinos, to contribute to the cost of public legal services.

Economic prosperity

Calls for additional funding have been enhanced by an article in the Australian Financial Review, which found that New South Wales is in better financial shape than ever before.

According to the report, “the state has just wiped out its net debt, the budget is in surplus, unemployment is the lowest of any state in the country and infrastructure spending is at record highs”.

Despite this, the government has proposed to reduce funding to legal aid and community legal centres.

Bar association

One of those calling for governments to increase funding, and for businesses to contribute, is NSW Bar Association President, Will Alstergren QC.

“Everybody recognises there is a massive gap in funding between what is required and what is actually available. We want to get the message out to the community that there is a real need for more funding…” he stated.

“it’s about the community itself where so many people should be entitled to access to justice but are not getting it”.

Mr Alstergren suggests that a levy be placed on businesses who contribute to the use of the legal system, such as the gambling, alcohol and tobacco industries.

Justification for levy

It has been estimated that between 20% and 25% of problem gamblers in Australia commit crime to fuel their habits, especially fraud offences.

Gaming venues – such as pubs and Star Casino – are also known for alcohol-fuelled violent crimes such as assaults, which place a heavy burden on the criminal justice system

Both the state government and gaming establishments have benefited from a rise in gambling in our state. In 2015, $73 Billion was put through NSW poker machines, representing a 6% increase from the previous year despite the fact that the number of gaming machines fell by 244 to 93,364 in the same period.

In that context, many feel it is not only fair but warranted for governments to increase funding for public legal services, and that a levy be imposed upon the gaming and alcohol industries.

[anotherbadboy]

NSW Police Refuse to Comply with Freedom of Information Request By Kieran Adair | 12/03/2018 | 1 Comment Print 5-7 minutes

A representative of the NSW Police Force appeared before the Administrative Appeals Tribunal last week, as part of an ongoing battle over a freedom of information request lodged 18 months ago.

In October 2016, Greens MP David Shoebridge filed a freedom of information request with the state’s police force, requesting briefing documents prepared by police for the NSW government during the 2016 debate over lever-action shotguns.

Earlier that year, state police minister Troy Grant began lobbying his colleagues to reclassify the Adler shotgun in NSW, setting the groundwork to remove a temporary import ban placed upon it by Prime Minister Tony Abbott.

“Throughout 2015 and 2016, the NSW Police Minister was aggressively making a political case to reclassify multi-shot lever-action shotgun to the least restricted category available. We want to know what advice the Police Minister and Government had been given about the safety aspects of the Adler and other lever action shotguns.” Mr Shoebridge told Sydney Criminal Lawyers.

It is understood Mr Shoebridge lodged the request to ascertain the advice cabinet had been given before making the decision. “We could see no valid argument why the advice that was given shouldn’t be disclosed” he remarked.

Freedom of Information requests

Under the Government Information (Public Access) Act 2009, members of the public are able to access information held by the NSW government and other public bodies unless there is an “overriding public interest against disclosure”, or another piece of state or Commonwealth legislation restricts such disclosure.

The aim is to promote transparency and participation in government, and make the state accountable for its actions.

Section 3 of the Act explains that:

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overrriding public interest against disclosure.

Applicants can submit a freedom of information request to any NSW government agency, including government departments, local councils, state-owned businesses, universities, ministers and their staff.

The organisation Right To Know provides a handy guide to making informal freedom of information requests, while the Privacy and Information Commission NSW provides a list of resources for making formal requests.

Importance of Freedom of Information

These requests play an important role in a representative democracy, giving the public a means of being informed about public decisions with a view to subjecting them to fair and proper scrutiny.

Freedom of information legislation has been recently used to ascertain rapid growth of land clearing rates across the state and the number of fatal shootings by police of those with mental illnesses.

As Right To Know explains:

“You pay taxes, and then government does things with the money. All sorts of things that affect your life, from healthcare through to national defence. Some it does badly, some it does well. The more we find out about how government works, the better able we are to make suggestions to improve the things that are done badly, and to celebrate the things that are done well.”

Government accused of delaying tactics

Despite the Act’s acknowledgement of the need for a ‘Government that is open, accountable, fair and effective’, Mr Shoebridge says the state regularly delays the release of important documents, and that waits of up to 12 or 18 months are not uncommon.

Although the law requires a response within 30 days, there are a range of stalling tactics which can be utilised to significantly delay disclosure.

Where there is a protracted delay or refusal, applicants are able to challenge that decision through the Administrative Appeals Tribunal – although that process can be time-consuming in itself.

“Quite often having information in a timely manner is what makes the information politically useful, and actually allows you to hold the government to account.” Mr Shoebridge states.

“When you’ve regularly got 12 to 18 month delays before you even get a decision, that just works in favour of Government secrecy, because even if you do get the information, the public debate has moved on.”

It is certainly not just state departments that are reluctant to disclose information to the public.

In recent years, the federal government has passed a suite of laws making it a criminal offence to disclose or publish information relating to Commonwealth government agencies, including human rights abuses in detention centres, anti terrorism raids (including raids where innocent people are subjected to heinous crimes at the hands of law enforcement officers), operations concerning offshore boats under Operation Sovereign Borders and crime, corruption and other forms of misconduct within government.

[anotherbadboy]

Predator Dentist Allowed to Work with Children   

Australia is renowned for its strong approach to border protection, with tough immigration laws making it difficult for many to settle in our country.

However, government authorities have been criticised after allowing a dentist convicted in the United States of several child sex offences to live and work here.

This news comes as the Health Care Complaints Commission (HCCC), the governing body that disciplines medical practitioners, has been blasted over its seemingly lenient treatment of doctors who engage in misconduct – this year alone, the HCCC has made adverse findings against 56 practitioners, permanently banning none of them. In the 2015 / 16 year, the Commission allowed 73 doctors with drug and alcohol issues to continue practising.

Predator Dentist

Dr Arvin Bartolazo (pictured) came across as a successful dentist in the United States and Australia. However, he was hiding a dark secret that many believe our authorities should have picked up on.

In August 1990, the doctor was arrested and convicted in Pennsylvania for indecent assault, corruption of minors and endangering children. The charges arose from inappropriate sexual conduct towards four patients, two of whom were under the age of 16 years. As a result, the dentist was sentenced to six months’ imprisonment.

Despite this, he managed to enter Australia and successfully register as a dentist in August 2005, going on to work for two prominent medical practices in Sydney for a total of seven years.

Dr Michael Fitzgerald, who had employed Dr Bartolazo without knowing about his prior convictions, said:

“He was touching up children overseas; really awful stuff and we had no idea because his record in Australia was so clean”.

The dentist’s sordid history was only detected after he was charged with two counts of indecent assault and common assault in July 2010, after complaints were made by two female staff members. Those charges were ultimately dismissed in court.

The dentist was eventually suspended from practising for two years in 2013 for lying on his registration papers and working for two years without registration, but as of August last year has been able to reapply for a licence.

The case appears to be an example of the failure of the government’s current systems of immigration and registration checks and oversight – a situation which can potentially put kids and other members of the public at risk. Many have also criticised the Dental Tribunal of NSW’s decision to suspend Dr Bartolazo for two years, rather than ban him permanently.

Concerns have been expressed that the doctor may apply and be granted a new licence.

Lenient treatment of medical practitioners

This is not the first time the HCCC has come under fire over its seemingly lenient treatment of practitioners.

Earlier this year, Dr Sunil Dan was hauled before the Commission for prescribing inappropriate medication to a pregnant woman in 2012, who then went on to lose her baby. For this, he was directed to avoid obstetrics but allowed to continue practising in other areas.

And in 2012, Dr Ong Ming Tan was convicted of aggravated indecent assault after performing sexual acts on four women he had been treating for eating disorders. The victims were among more than a dozen women who made complaints against Dr Tan over a period of 18 months, but the Commission failed to act until after the doctor was sentenced to 30 months in prison. To make things worth, the Commission declined to permanently ban the doctor, instead suspending him for five years’.

Health Practitioner Regulation

In Australia, health practitioners are subject to the Health Practitioner Regulation National Law (NSW), Part 8 of which gives the HCCC power to discipline practitioners for ‘unsatisfactory professional conduct’ or ‘professional misconduct’. Penalties for adverse findings range from warnings through to permanent bans from practice.

Professional misconduct is reserve for the most serious transgressions, and is defined as ‘unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration’.

Many are concerned the current lax system of checking medical registrants – combined with the HCCCs seemingly lenient treatment of practitioners who engage in inappropriate or dangerous conduct – creates a significant ongoing risk to members of the public, while doing little to deter to would-be offenders.

Image credit: Daily Telegraph

 By Sydney Criminal Lawyers By Blake O’Connor and Ugur Nedim

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Move Over Bikers, Tattoo Parlours Are Next on the NSW Government’s Hit list                      

By Blake O’Connor and Ugur Nedim

The past decade has seen the introduction throughout Australia of draconian laws ostensibly designed to restrict the movements and associations of motorcycle club members, with many justifiably expressing the view that such legislation is making a mockery of the law.

The most recent target

More recently, similar legislation was passed to target tattoo parlours – with hard working small business owners facing closure at the whim of the NSW government.

The Tattoo Parlours Act 2012 (NSW) requires all persons who operate tattoo parlours to be licensed. Among other things, section 12 of the Act requires licence applications to be accompanied by a statement outlining any ‘close associates’ of the applicant. A close associate is defined to include anyone who holds, or will hold, any financial interest in the business.

Additionally, section 26 allows for a licence to be cancelled upon an ‘adverse security determination’ which leads to a finding that an applicant is ‘not a fit and proper person to be granted the licence’.

This means tattoo parlour operators can lose their businesses where government bureaucrats decide they are not fit to be hold a licence.

Bondi Ink

The company behind reality TV show ‘Bondi Ink’ has certainly felt the impact of these laws, with the business being forced to close after the government refused its application for a licence.

A spokesperson from the NSW Department of Fair Trading said the refusal was based upon an ‘adverse assessment’ by NSW police.

Bondi Ink, who counts celebrities Zayne Malik and Ronan Keating as fans, is not the only company to express concerns over the draconian laws. The owner of Charlies Tattoo Parlour in Surry Hills, Bodie O’Leary, has described the laws as “crazy”, saying “they unfairly target artists who have no links to bikie groups, drugs or violent crime. Mr O’Leary added:

“I have a perfect driving record and I’ve never committed a crime… I just tattoo for a living. They are making us do things that convicted criminals have to do; the police can search the studio, inspect our financial records and basically do whatever they want”.

Justification for laws

Police and government representatives argue the laws are necessary, claiming tattoo parlours are a hotbed for crime, with one-in-four allegedly having some form of ‘association’ with outlaw motorcycle clubs.

They point to an incident at a parlour belonging to the family of bachelorette winner Sasha Mielczarek Jr, which was subjected to a drive-by shooting in November last year.

Criticism

However, critics of the laws highlight their invasive and arbitrary nature, pointing out the unfairness of allowing police to enter and search operating businesses based on the mere fact that motorcycle club members get tattoos there, let alone the potential injustice of allowing government bureaucrats to effectively shut down operations based only upon the recommendations of police.

Image credit: Sydney Morning Herald

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Police Officer Suspended Over Child Sexual Assault Allegations     

By Sydney Criminal Lawyers

A Queensland police officer has been stood down amid claims of child sexual assault.

The man is associated with the Child Protection Investigation Unit, the very body that is supposed to investigate crimes committed against children. He was involved in a drug raid on the Gold Coast last September, during which he conducted a search upon a 15-year old girl where he is alleged to have “inappropriately touched” the teenager.

The Queensland Police Service (QPS) has confirmed the officer has been suspended on full pay.

QPS has not released the name of the officer or further details about the allegations; however, the reports raise a number of questions, including why the girl was searched by a male officer – rather than a female as required by police protocol – and the nature of search performed.

The incident is yet another blow to the image of the service, which has been under intense scrutiny in recent times, with footage of brutality and other forms of misconduct regularly captured by the public and published on social media.

The QPS is accused of having a strong tendency towards ‘protecting its own’, with the vast majority of ‘internal reviews’ resulting in no action being taken at all, many of which later result in convictions after charges are brought by the DPP.

Police suspected of serious crimes

Closer to home, more than 50 NSW police officers are currently facing serious criminal charges including child sexual assault. What’s particularly concerning is that many of the officers remain on active duty.

Statistics suggest that 1 in 40 serving police officers in NSW have criminal convictions. This amounts to 437 serving police officers, with 591 convictions between them.

Protecting their own

In addition to dismissing the vast majority of complaints against their colleagues, police forces across Australia have been accused of actively protecting their own against criminal prosecution – including when it comes to serious allegations.

Earlier this year, Victorian police were accused of protecting a paedophile within their ranks – a man who police failed to take action against for years, and who was ultimately convicted of 18 sexual offences against 9 children, including his own stepchildren.

The court heard the officer used his uniform, badge and gun to either impress and groom his victims, or threaten them, before sexually assaulting them.

Police still investigating themselves

Despite calls for independent investigatory bodies with real power, it seems governments are intent on simply giving police more power to investigate themselves.

After a recent review in Queensland into various police brutality cases on the Gold Coast, the Victorian Police Commissioner was granted more power to sack rogue officers, and to transfer those who he feels are exhibiting “unacceptable behavior”.

Many prefer that an independent body be established with the resources and power to investigate, and independently discipline and prosecute police officers, rather than simply make recommendations.

Transparency

QPS has recently begun a state-wide rollout of body-worn cameras for officers, costing around $6 million. This digital expansion program means that almost half of the state’s 11,000 officers will have access to the cameras.

However, the concern is that – like in NSW – Queensland police will have absolute discretion to turn the cameras on and off as they please, and that members of the public will not have the power to request that the cameras be turned on in the face of an encounter.

Indeed, many now view the NSW body camera scheme as yet another way for police to exert power and control over members of the public, and to distort the nature of encounters, by deciding whether and when to turn their cameras on and off.

Image credit: qt.com.au