This speech was delivered on 18/06/2014 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [11.36 a.m.]: Perhaps what is most disturbing about the contributions from both the Government and the Opposition is that neither representative addressed the fact that the Tink-Whelan report—as grossly flawed as it was in its failure to consult; as grossly pro-police as it was in that the authors of the report spoke only to the police, and even when the appallingly biased nature of the report is taken into account—made it clear that the police do not need the extension provided in the bill and that the great majority of cases are easily dealt with within four hours. The problem—if there is one—about detaining people beyond four hours is a problem in the mechanics of obtaining an extension, which can take the better part of two hours. If the Government were serious about addressing the problems in this part of the bill, it would be addressing the mechanics of obtaining an extension. Instead, the Government has simply reduced everybody’s civil liberties. That is the proposal of the Government, which is supported by the Labor Opposition. They have reduced everybody’s civil liberties by allowing anybody who is the subject of arrest to be held for six hours for questioning.
We know that the police say they do not need six hours in the great majority of cases but, blind to that, the Government, with the strong support of the Opposition, simply says, “We don’t care about those civil liberties. We will just remove those civil liberties issues for everybody because in the tiny minority of cases the police can spend a couple of hours obtaining an extension.” If the Government were serious about fixing the problems in the legislation—and there are some—it would be fixing the process of obtaining an extension of time, not just removing or watering down everybody’s civil liberties and providing that anybody can be detained for six hours by the police in these circumstances.
We had crocodile tears in the contributions made by the Hon. Ernest Wong and the Deputy Leader of the Opposition, the Hon. Adam Searle, about civil liberties and pretended concern about the expansion of police powers. But time and time and time again when it comes to the vote and when it comes to standing up for the principles of civil liberties, we find the Opposition in this place caving in to the Government. Another example is the one-punch laws and in this instance the Opposition is caving in on the extension of time for which people can be routinely detained by the police after arrest. When it becomes too difficult to run the argument in the pages of the Daily Telegraph, principle escapes out the door, politics takes over and again we see attacks on civil liberties attracting broad support in this Chamber.
The Greens will stand on principle in relation to this matter. We believe that, consistent with all the best advice from the Law Reform Commission and even, when it is properly read, the Tink-Whelan report, there should not be an extension of time for which police can hold suspects or persons arrested in these circumstances. The Government’s only support is a report that is a quarter of a century old. It pulls a 25-year-old report out of archives, dusts it off, puts it on the table and says, “Oh well, 25 years ago there was some support for looking at an extension in certain circumstances.” But, in doing that, the Government fails to refer—as did Tink and Whelan—to the most recent report from the Law Reform Commission, which said exactly the opposite. The body that is charged with examining law reform in this State talks to a broad range of stakeholders, considers matters seriously and says, “Don’t do this”, but what does the Government do? It ignores the Law Reform Commission.
A couple of months later the Government gets its nod-and-a-wink report from Tink and Whelan—for which they only talked to police—and, when it realises even that report offers paper-thin support, it hunts around in the archives for a 25-year-old report to support its argument. There is no principled basis upon which to put forward this proposal. It is a power grab that has been pushed by the police and, sadly, this Parliament—whether it is the Government, the Labor Opposition or the balance of the crossbench—is refusing to stand up to it.
Mr DAVID SHOEBRIDGE [11.49 a.m.], by leave: I move The Greens amendments Nos 1 and 2 on sheet C2014-050 in globo:
- No. 1 Page 9, schedule 2 [15], line 16. Omit “12 months”. Insert instead “3 years”.
- No. 2 Page 9, schedule 2 [15], line 25. Omit “12-month”. Insert instead “3-year”.
These amendments provide for a three-year review of the changes to the Law Enforcement (Powers and Responsibilities) Act. As I made clear in my second reading contribution, the changes the Government has proposed, with the support of the Opposition, present significant concerns for civil liberties in this State. The blanket increase from four to six hours for the period that people can be held after arrest is a substantial watering down of civil liberties in this State. There is no good basis upon which this change is proposed. It is not supported by the Law Reform Commission or by Tink and Whelan. When it is rolled out it is likely to lead to poor practice in this State and a substantial degradation of people’s right to liberty until such time as they are found guilty by a court. Therefore, to propose to review that change only 12 months after these laws come into effect is to propose a pretend review. Of course, it would mirror the Government’s pretend review with the Tink and Whelan report. The Greens proposal is to increase the review period from 12 months to three years.
The CHAIR (The Hon. Jennifer Gardiner): Order! There is too much audible conversation in the Chamber.
Mr DAVID SHOEBRIDGE: It is primarily the Opposition Whip.
The CHAIR (The Hon. Jennifer Gardiner): Order! There are children giggling to my right as well.
Mr DAVID SHOEBRIDGE: The Greens amendments would increase the review period to three years and require the Ombudsman to provide a report thereafter. It is not just the increased period for which people will be detained that must be subject to review. Changes to sections 201 to 204 of the Law Enforcement (Powers and Responsibilities) Act—which, effectively, remove the obligation of police officers to explain to people why they are being arrested before they are arrested and essentially remove the obligation for police officers to tell people their name and station before arresting them—are likely to produce a significant change for the worse in police culture in New South Wales. If police officers cannot explain to people beforehand why they are being arrested, why are police officers arresting people in the first place? For some bizarre reason, the majority in this Chamber—a majority in the Parliament—will remove that obligation on police.
Notionally, it is kept on the statute book: The law states that police need to, as soon as practicable, tell people why they are being arrested and explain why police powers under the Act are being exercised. But if the police simply fail to tell people why they are being arrested or why the Law Enforcement (Powers and Responsibilities) Act powers are being exercised, they are not subject to a penalty. Removing any penalty or sanction when police breach the Act presents a significant concern for consequential change in police culture. Obviously, any review of this legislation needs to be much more systemic than just 12 months, as proposed by the Government. That is why The Greens propose amending the review period. If substantial changes to police operations in this State are to be reviewed seriously, it should be a fair dinkum review and cover three years rather than just the 12-month pretend review that the Government has proposed.
Mr DAVID SHOEBRIDGE [11.54 a.m.]: I agree that if there is a problem we should get a report, but we will not know if there is a problem within the first 12 months. Police culture—
The Hon. Dr Peter Phelps: What, no-one is going to be arrested in 12 months? Is that what you are saying?
Mr DAVID SHOEBRIDGE: Another useful interjection from the Government Whip.
The Hon. Dr Peter Phelps: No-one is going to be arrested in 12 months? What a genius you are!
Mr DAVID SHOEBRIDGE: I note and accept the interjection from the Government Whip. Changes to police culture take years or decades. For the past 15 years police have had a clear obligation to explain to people, because of the provisions of the Law Enforcement (Powers and Responsibilities) Act, why they are exercising their powers under that Act. Good police will continue to endeavour to do that. When it becomes apparent to police that if they just arrest people and tell them at some point down the track why and how they have exercised the powers there is no sanction, and when they see those cases work their way through the court system and realise that breaching the Act comes with no penalty and they do not have to go through the rigmarole of actually telling people why they are arrested in the first place, the culture will begin to change and we will see the standards slipping.
No doubt the Government wants a review after 12 months because there will be only a few decided cases and little track record on which to proceed, and the Government can tick off on the outcome, just as it did with the Tink and Whelan report. A far more rigorous approach is to wait for three years. It is not surprising that The Greens are not getting majority support in this Chamber for these amendments. We had hoped to have support from the crossbenches for this matter of substantial principle, but apparently not.
The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [11.56 a.m.], by leave: I move Opposition amendments Nos 2 to 4 on sheet C2014-051D in globo:
- No. 2 Page 9, schedule 2 [15], lines 24 and 25. Omit “that 12-month period”. Insert instead “each period of 12 months during the 3-year period referred to in subclause (1)”.
- No. 3 Page 9, schedule 2 [15], line 28. Omit “the report”. Insert instead “any such annual report”.
- No. 4 Page 9, schedule 2 [15], line 36. Omit “the report”. Insert instead “a report”.
As I indicated, the first amendment of The Greens is the same as Labor’s foreshadowed amendment No. 1. Labor’s amendments Nos 2, 3 and 4 are consequential on the first amendment, seeking to achieve the same outcome as Mr David Shoebridge’s amendment. As indicated, the Opposition believes a better and fuller review period should be in place. This change to the law is significant in certain respects, as Mr David Shoebridge has indicated. We believe there should be proper monitoring of the effect of the change in the law over that three-year period, including periodic annual reporting. We believe that is the only proper way to gain an appreciation of what practical change is occurring on the ground, if any is occasioned by these otherwise, on the face of it, significant changes to the Law Enforcement (Powers and Responsibilities) Act. For more abundant caution, so the public and the Parliament can gain a real-time appreciation of what is happening under the changes, we believe these amendments are not only prudent but also necessary to maintain the integrity of the bill’s proposed changes to the law.
Mr DAVID SHOEBRIDGE [11.58 a.m.]: The Greens will support Opposition amendments Nos 2, 3 and 4. I hate to say it, but they actually improve The Greens amendment because they provide for a report every 12 months rather than at the end of every three years, as our amendment provides.
The Hon. Catherine Cusack: Have a report every month or every day.
Mr DAVID SHOEBRIDGE: A report every 12 months is an important oversight mechanism because we can see what, if any, changes are occurring. Hopefully, if there is an outbreak of sanity in this House and Parliament, and the changes produce poor outcomes in police culture—as I suspect they will—we will be able to intervene early to reverse some of the changes proposed. For those reasons we support the Opposition amendments.