Page 5274 - Week 14 - Wednesday, 29 November 2017
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On the issue of human rights compatibility, some context about our framework is valuable. The government and the Human Rights Commission can scrutinise and can offer a certification that legislation is human rights compliant, but the courts will decide independently if there is a legal challenge. The basic model underlying Mr Hanson’s bill—that of criminal organisation control legislation—has been reviewed extensively in other jurisdictions. At its core it is a piece of legislation that is highly likely to be challenged because it imposes restrictions on the freedoms of people who have not necessarily ever been convicted of a crime.
But, apart from legal compliance with human rights, there is a more fundamental issue with criminal organisation control laws. It is essential in considering any new legislation to ask the question, “Will it work?” The New South Wales Ombudsman reviewed the New South Wales version of this law in November 2016 and found that “the act does not provide police with a viable mechanism to tackle criminal organisations and is unlikely to ever be able to be used effectively”.
The report further noted that all jurisdictions except for the ACT and Tasmania have some form of criminal organisation control law but that none has been able to use it effectively. The Ombudsman made one recommendation about the legislation that was the model for Mr Hanson’s bill—that is, that the law be repealed. Further, the Ombudsman found that “no police force in Australia has been able to successfully utilise the legislation”—that is, even in a jurisdiction without a Human Rights Act the law that Mr Hanson has proposed is not effective.
I note that Mr Hanson has expressed the view that these laws are a useful deterrent in the absence of anti-consorting legislation. However, there is every reason to believe that this bill will be ineffective in the ACT and, while commendable, the human rights protections that Mr Hanson has included will likely make the bill even more difficult to use.
If you look at the New South Wales Ombudsman’s report, what police say makes these laws difficult to use is the standards of what must be proven in court to designate a group as criminal. Those standards are very high. Part 4.4 of that report contains the details, and in that section the Ombudsman identifies a long list of standards of proof that made the legislation, in the view of New South Wales police, not worth working with. Mr Hanson’s bill shares these features of the New South Wales legislation, with even tighter standards and controls to account for human rights concerns. Again, while I commend the attention to human rights, they only reinforce concerns about the effectiveness of the law.
The government is strongly committed to responding to crime. We recognise that it requires much more than just passing laws. Resourcing for police, an understanding of the investigative challenges they face, and a focus on depriving criminal gangs of the income that motivates their behaviour are all critical. We will keep working with police, prosecutors and the legal profession to deliver effective reforms that are comprehensive and focus on outcomes.
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