Page 4767 - Week 13 - Wednesday, 1 November 2017
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Consultation with stakeholders, feedback from the operation of the legislation in other jurisdictions—in particular New South Wales—and consultation with the Human Rights Commission have led to numerous amendments which create a unique approach which will achieve the legitimate policy objective but do so in a way that is reasonable, necessary and proportionate.
I will briefly go through the key operational aspects of this bill. First, and very importantly, only the Chief Police Officer may apply for these laws to be used, and only the Supreme Court can rule on the Chief Police Officer’s application. They can only be used when the court is satisfied that a person is a known member or associate of an organised gang, and the order will prevent or disrupt criminal activity.
If invoked, the laws are applied using the following process. Firstly, the Chief Police Officer applies to the Supreme Court for an organisation to be declared a criminal organisation. This has to be done with full court processes, including notification and rights to response and representation. Secondly, after considering the evidence and balancing factors, the Supreme Court will decide whether to support the application for an organisation to be declared a criminal organisation. If it does, the Chief Police Officer then identifies particular individuals within that organisation. Again, only the Chief Police Officer may apply and only the Supreme Court can consider the matter. There are rights to appeal by the people concerned, and only once all the evidence is collected and assessed by the court will a declaration be made.
Once specific members are declared, a control order may be issued, either interim or final, that specifies what activities are to be controlled, considering all the circumstances of the particular case. Only once all of these steps are satisfied, certain people within an organisation would be unable to contact or have dealings with other named members of that group.
The regime is balanced by a number of exceptions and defences, which have been carefully worked through, but they will no longer be able to meet or take part in any of the activities of the declared organisation. That is how we prevent and disrupt, rather than the approach we have seen from the government, which is simply to respond. Maximum penalties for convictions under these laws range from two years for first offences up to five years for repeat offences. That is consistent with what happens in New South Wales.
In submissions it was put that “by their nature, anti-consorting or control order regimes will limit various rights contained in the Human Rights Act”. There are a couple of points I would like to make in regard to human rights. First, the Human Rights Act and prior parliamentary decisions clearly show that there can be limitations where that limitation is reasonable, necessary and proportionate to the objective being sought. Any right has its limits; read the act and you will see that.
A joint submission from the Human Rights Commissioner and the Victims of Crime Commissioner, the Public Advocate and Children and Young People Commissioner and the Discrimination, Health Services and Disability and Community Services Commissioner on this bill stated:
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