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Police Offences Amendment (Consorting) Bill 2018 Second Reading

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 20 September 2018

Tags: Legislation, Crime, Police

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, this is a complex bill that selectively applies elements of the Magistrates Court and the Administrative Appeals Division Act 2001. I want to put on the record how outraged we are at the complete arrogance of this Government in giving the parliament two days to treat such a serious matter. It is very clear this bill was never designed to get the support of the Greens and the Labor Party because it has been impossible for us to have conversations with stakeholders about the concerns they have raised. It has also been impossible for stakeholders to have time to look at the detail of the bill and make their comments.

I thank the police, including the police officers from New South Wales who flew down and gave me a briefing yesterday, which I was lucky enough to be able to fit in although I had to cancel something else I had given it was the only time it was offered to me. I thank the police for going through the details in the bill and answering all the questions I asked.

Let us be clear that this was never brought on in a manner designed to get our support. I expect the minister already has a media release drafted ready to push out as soon as possible to make clear the position of the Greens and the Labor Party on this matter, because this is all about continuing a 'tough on crime' mantra. The minister had a piece in the Mercury today talking up their 'tough on crime' policy. It is quite clear that this serious issue the police are grappling with and Tasmania is seeking to manage is not being treated seriously by this Liberal Government. If it were, we would have had time to attend to the complexity of the issues this bill raises.

Parliamentary processes matters and elements of this bill deal directly with freedom of association and the court's ability to review decisions that have been made. These trample on long-held aspects of the democratic Westminster tradition of the state we live in and the way we choose to live as people, and there may reason for doing that. We already remove people's freedom of speech and association in prescribed situations but we always do it with great care, great caution and with as many checks and balances as are needed. That is exactly what we have not had time to pay attention to on this serious matter.

It is clear this has been a bad-faith process and shame on the minister and the Liberal Government for treating it like this because it is a serious issue. It is obvious to me, and I hope to other people watching, that they should have actively been trying to seek the support of all parties on this serious matter. It is clearly impossible to make an informed decision about the concerns stakeholder have raised when they have not themselves had time to properly treat the detail of the bill.

I understand that the police feel the minister has already provided stakeholders with the contents of the bill, but a consultation draft is not the same thing as a tabled bill. It is not the same thing when you have key stakeholders being the Tasmanian Bar, the Lawyers Alliance, the Civil Liberties Council and other groups. It is false to say it is and disrespectful to pretend that it is.

We are deeply unhappy at the minister's treatment, arrogance and, frankly, laziness on this matter. It is just not the way you do business.

Madam Speaker, the minister was encouraging me to get onto the substance of concerns. It seems he was not comfortable hearing the first and serious concern we had which is about the failure to consult properly with the Labor Party and the Greens in trying to achieve tripartisan support for this bill.

I thank the police for the work they have put into this. It reflects badly on the minister that his staff, the police and all the other people involved have put so much effort into this bill and he is using it as a political football.

There are a number of issues I want to identify and I will flag now that we have moved amendments to the things I am raising. The Greens have done the work in the past two days to attempt to draft amendments to the very serious concerns stakeholders have raised about aspects of this bill. This is despite the fact we have no support from the parliamentary drafters and a very small team. I thank the staff involved, particularly Thomas - he knows his skills - for the very masterful way we have been able to prepare amendments at such short notice on such a serious matter. We will be discussing those amendments in detail in the Committee stage for this bill. I understand the Labor Party has amendments as well and we will look at those.

In summary, we consider the scope of the offences covered under this bill is far too broad. The scope of serious offences includes all indictable offences, whether the offence would be tried on indictment or summarily as well as a range of other things which are identified in the act that are covered under the Firearms Act, the Misuse of Drugs Act, the Sex Industry Offences Act, the Classification (Publications, Films and Computer Games) Enforcement Act and other offences listed in the definitional section. A more specific list of offences should have been provided for in a schedule. We do not have the resources to draft such an amendment, although that could have been done. In the time provided we were not able to do that.

We are concerned there is no time limit on when an offence has occurred for a convicted offender. That is unreasonable and there are issues about the age the person was when they were convicted of an offence. We are concerned about previous offences which might have happened in a person's life that perhaps happened when they were under the age of 18. It could be decades later and because of the range and scope of the offences covered by this bill, and the failure to pick up on either the time past for the offence having occurred or the age of the person, whether they were a youth at the time, we are very concerned by both of those facts.

The five year operation of the order not to consort also seems excessive. That was raised by a number of stakeholders. I recognise points made by the police who provided the briefing that other states have longer than a five year period for an order; some do not have a time limit. The fact that other states have far lower bars in this matter is not a reason to take five years as the appropriate time. It would appear that nothing would stop an order being reissued on the expiration of the order. In other words there is nothing in the bill which discusses when an order expires whether it could or could not immediately be reissued. On that basis, we believe a shorter time frame is reasonable. That would enable a process to be undertaken formally and potentially the process could be questioned or appealed if that is believed to be unreasonable.

We also have concerns that provisions around protecting intelligence are too broad. It is certainly clear and essential that the intelligence of the manner in which surveillance is conducted, the processes around the operations of the police, any factors that might put at personal risk a witness or that might be an issue for a national security risk or a public safety risk, all of these are serious matters that should not be divulged to an applicant. However if an appeal is requested and goes to a magistrate, all the evidence that is provided by police, that has been mounted about the making of a consorting order all of that is treated, in the first case, as being confidential. Rather than letting the magistrate and then in the correct process a judge determine what evidence should be confidential and which should be able to be seen by an applicant or the applicant's lawyer rather than that occurring it is all treated as confidential. Therefore none of it is made available to the applicant or their lawyer for review. These are very concerning matters and we have drafted some amendments in an attempt to find a remedy.

This bill also puts aside the provisions of the Magistrates Court (Administrative Appeals Division) Act 2001 that allow for a decision to be stayed and the requirement for any review to be de novo. This removes the possibility for the applicant to have any recourse to the decision that was made to bring in a consorting order upon them. The bill deliberately prevents a decision by a magistrate from being appealed to the Supreme Court. It removes the part of the act which would enable that to happen. An explanation for why that has been done was not given. This is a very serious departure from the mechanisms that all citizens living in Tasmania have available for us, which is to appeal a decision on the basis of the evidence that has been provided, the review of the evidence and the assessment that has been made.

I point to a letter from Premier Will Hodgman sent to Mr Richard Griggs from the Tasmanian Human Rights Act Campaign Committee on 1 February this year, before the election. It was regarding whether the Liberals would support a human rights act in Tasmania and the Human Rights Act Campaign Committee was established to try to get such an important bill through this place with the support of all parties. In providing reasons why the Liberals would not support a Human Rights Act, Mr Hodgman said -

Most Tasmanians are confident that their basic rights are protected and the rule of law is strongly entrenched in our political culture. Our system of democracy contains safeguards and includes common law principles that ensure many protections are upheld by our judges applying these principles.

This law specifically removes the opportunity for a person to seek a judge's assessment of the evidence and it removes the possibility of a trial in a supreme court. Given the Premier's confidence, it speaks volumes about why we should have a human rights act in the state. Until we do, we will continue to see bills like this coming before us. People have no recourse and no appeal on the basis of the fact that they remove fundamental human rights. They remove rights and freedoms which we have come to accept and some would say, take for granted, especially people like the Premier. Although the Premier is trained as a lawyer, he seems to be blithe to the legislation that we have before us here today. Maybe it is because he chooses to absent himself from parliament and spend time in China instead of being here, in his state, managing these weighty matters. He is not fully attentive to the fact that we have before us a bill today which does not ensure that the freedoms we have come to expect would be upheld by a possibility of taking it to a judge for a final decision.

What we have in Tasmania, under the Liberals for the past five years, is a culture of increasingly draconian rules, by-laws and legislation. There is a march, which the Liberals seem determined to continue down the path of, and it is a dangerous march. We stand for Tasmanians who are concerned about the changes that are happening around the world, in Australia at the federal level with laws, and the changes that are happening right here today under the Liberals; an erosion of democratic rights, of the freedom of speech and the erosion of the right to associate with people without sufficient checks.

Tabled today is another example: the return under section 19 of the Public Account Act. We will be talking about this next week. What it brings to mind is another attack by the Liberals on those who stand up against hatred and hate speech. The Anti-Discrimination Commissioner has had $40 000 cut from the budget: $40 000 from a budget which is none too big; in fact, needs to be a whole lot bigger. The Liberals do not pay any attention to anti-discrimination legislation. The role of the Anti-

Discrimination Commissioner has always been one that they have tried to do down. It is not surprising that if they need to trim the jib in the budget of government that it would be one of the first places that they would be looking at.

It is not surprising that in the House again this morning we had the Minister for Local Government pretending to parliament in question time that he has no responsibility, no jurisdiction, over by-laws created at the local council level, despite the fact he is the Minister for Local Government. He is the minister responsible for overseeing the Local Government Act, for intervening in councils; so much so that he dismissed two councils in the last term of government. This is the same minister who pretended to us in parliament, who had the gall to stand here and say that it is a local government issues that they are making it by-laws. It is not true. It has been here on the Table of the House.

The Greens have brought it on to disallow the draconian by-law, which will seek to shut people down for wanting to play cricket on the beach, kick a football in the park, collect money for charities, to take some wedding photographs on a lawn in a public place, to have a barbeque at the Kangaroo Bay barbeque shelter with some friends - maybe talk a bit of politics, maybe not. Maybe there might be a union gathering. Some unionists might meet there to have a coffee and have a chat about stuff. You might have a launch of something. Charities might be having a fundraiser. None of these things could happen without the general manager of Clarence City Council signing it off.

So you have to go to council when you want to play cricket at the beach with your friends. You have to fill in a form. You probably have to pay some money because council could not possibly afford to process these sorts of things without having some money, staff time. They have to recoup costs.

This is the sort of garbage that the Clarence City Council has passed in order to go through the motions of using our public spaces. We will be bringing on that this awful by-law be disallowed in our private members' time next week. We expect the Minister for Police and the Minister for Local Government to support our motion. The Commissioner of Police made it quite clear that he considers it to be that it is the right of people to assemble in peaceful means, and to protest is a fundamental democratic right. This by-law is authoritarian and it does not stand up to the constitution.

This is exactly the culture that this bill drops into today. It was on the notice sheet two days after it was tabled. We will table a number of amendments. They are what we have been able to do in the time that we have had. I want to make it clear that they cannot be a comprehensive response to all the concerns that have been raised from stakeholders. Also in drafting amendments, we have not had time to go to stakeholders and get their views, but we will bring them in here today in good faith. We will not be able to support this bill because of what the Liberals have done in the manner of bringing it in. It is clearly impossible to do that.

These are organisations which made submissions with one day's notice. The Tasmanian Bar made a submission recognising the desirability of Tasmania Police to have modern policing tools to combat organised crime and criminal groups. However, the Tasmanian Bar is alarmed at the content of the bill we have before us and they urge the parliament not to pass it.

We also had comments from the Australian Lawyers Alliance. They pointed out that if a form of consorting law is required the aims of the legislation need to be addressed by a different legislative model because the current ones do violence to fundamental liberties that are basic to democratic policies. They also say that the current bill demeans the Magistrates Court and judicial officers who tirelessly serve it and force upon the court an appeals process that disregards basic principles and traditions of procedural fairness and justice.

Richard Griggs, the Tasmanian director of Civil Liberties Australia, made the point that he was surprised and disappointed this bill has been listed for debate with just two days' notice, given the serious negative impact the proposed law would have on freedom of association. He also said that in the lead-up to the March state election the Liberal Government expressed its support for freedom of expression.

I point to the comments the Premier made in the back of the letter I referred to before from 1 February where he said:

The High Court found that our parliamentary democracy essentially requires a measure of freedom for individuals to express political views and debate issues. The Tasmanian Liberal Party believes that all people should have the opportunity to advance to their full potential. We also believe in the most basic freedoms of parliamentary democracy - the freedom of thought, worship, speech and association.

I might leave the last word with the Premier on that matter because that makes it clear that the manner in which this has been brought on is a political stunt about a very serious matter. It is a stain on the minister for Police that he has chosen to do that in this way. We will, in good faith, discuss our amendments and listen to the amendments from the Labor Party in the hope members of the other place will listen to the points we raise and may consider to take some of them into account when they are making their own deliberations.