The Rule of Law Institute of Australia condemns the NSW Government’s Crimes (Serious Crime Prevention Orders) Bill 2016 in the strongest terms, as a serious threat to the rule of law in New South Wales.

The Institute acknowledges that the prevention of crime remains a serious priority for New South Wales, but the measures adopted by the Bill – which breach legal principles developed over 800 years ago – are not the answer. The risk of innocent people being deprived of their liberty is too high.

There was no consultation with stakeholders prior to the Bill being introduced into the NSW Parliament.

 Serious crime prevention orders

The Bill, drawn from the “serious crime prevention order” (SCPO) regime in the United Kingdom, is yet another addition to the growing catalogue of government powers that allow serious interference with personal liberty and privacy without any finding of criminal guilt.

SCPOs, along with other control and preventive detention order regimes in NSW and across Australia, risk fuelling the growth of a parallel system of criminal justice. This parallel system is based not on findings beyond a reasonable doubt that past behaviour constituted the commission of a particular offence, but on hazy predictions about particular individuals’ future behaviour.

The Bill operates by allowing certain state officers – the NSW Police Commissioner, the NSW DPP, or the NSW Crime Commission – to apply to a court for an individual or a corporation to be subject to an SCPO.

The court must be satisfied that:

  • a person has been convicted of a serious criminal offence, or is otherwise “involved in serious crime related activity” (including situations where the person has been tried and acquitted of a serious criminal offence, or has not even been charged with an offence at all); and
  • there are reasonable grounds for believing that the SCPO would protect the public by preventing the person from further involvement in serious crime related activity.

The court need only be satisfied of these matters on the balance of probabilities, and may use hearsay evidence – long regarded as often unreliable, and thus excluded from most criminal trial situations – to make its decision.

The court may then impose an SCPO – containing such conditions “as the court considers appropriate” – for a period of up to 5 years.

Finally, breach of an SCPO is to be a criminal offence, punishable by a prison sentence of up to 5 years. Thus, as with so many other control and preventive detention order regimes, criminal guilt and custodial sentences are deferred down the line, to a point when the biggest hurdle – of gathering evidence to prove criminal behaviour – has already been cleared by simply changing the standard of proof.

 Effect of the Bill

Passage of this Bill would leave individuals in NSW:

  • liable to lose up to 10 years of their liberty and privacy;
  • upon a finding that it is more likely than not that they once engaged in conduct, intentionally or knowingly or not, that could be considered likely to have facilitated some particular behaviour on the part of another person;
  • which behaviour could be considered to have constituted a serious criminal offence at the time it was done;
  • even if that other person was acquitted of, or never even charged with, that offence, or any offence.

The sheer scope of this SCPO scheme may be a positive in the eyes of some in the community, but it is worth bearing in mind the operation of some other invasive law enforcement mechanisms around the country:

As these figures indicate, serious invasive and coercive powers have a ‘creep’ effect, and can be used in situations very different from those for which they were initially designed.

The Rule of Law Institute of Australia is deeply concerned about the Crimes (Serious Crime Prevention Orders) Bill 2016, and the NSW Parliament should reject it.

Further reading

Crimes (Serious Crime Prevention Orders) Bill 2016‘, NSW Parliament

Second reading speech for the Bill‘, Justice and Police Minister Troy Grant MLA

E-brief: Serious Crime Prevention Orders‘, NSW Parliamentary Research Service

Submission regarding the Bill‘, NSW Bar Association

Submission regarding UK serious crime prevention regime‘, Liberty (UK human rights and civil liberties NGO)

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