Wednesday, 5 March 2014
Matters of Public Interest
Today many of us take for granted the presumption of innocence, freedom of association and our right to be treated equally before the law. Similarly we assume the judiciary is free to make independent decisions unshackled by government agendas. Unfortunately the recent anti-association legislation in Queensland, which was rushed through in the middle of the night without community consultation or expert guidance, places all these democratic fundamentals in peril. Whilst this is happening thousands of kilometres away from my home state of Tasmania, I am deeply concerned that, if we do not all speak out, these laws could set a reprehensible precedent for the rest of the country in the race to the bottom.
You have probably heard references in the mainstream media to Queensland's tough new bikie laws. While the Newman government is probably very happy with this characterisation, a more appropriate tag would be 'draconian new anti-rights regime'—because the truth is that the legislation contains no reference to bikies at all. Instead it calls upon a list of all those associations—which can be defined by the government of the day with no evidence or justification. Instead of the government having to prove that an organisation is involved in illegal activity the long-held legal principle of burden of proof has been reversed so that the accused must prove that the group is not involved—in many cases a near impossible task. Worse, the government can change and update the list on a whim, with no need for parliamentary scrutiny or legislative changes.
The infamous Vicious Lawless Association Disestablishment Act, VLAD Act, is even more broad, defining an association as:
(a) a corporation;
(b) an unincorporated association;
(c) a club or league;
(d) any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal.
This makes for pretty big crosshairs that could be applied to virtually any group of people, if the government felt so inclined. The truth is that there is nothing in the legislation to prevent the government from using the list to target any group that happens to fall out of favour at the time. Today it is bikies; tomorrow it could be unions, members of environmental groups or anyone else who attracts the ire of the government. The Queensland Law Society agrees, saying: 'The wording in the legislation is so broad that sporting associations, workplaces and even book clubs could be at risk.'
Interestingly, criminologist Terry Goldsworthy, said that of the 26 declared groups many of them had only a handful or no recent offences against their name. The new laws also make it illegal for members of proscribed groups to meet in public. Let us be clear: there does not need to be any evidence of a crime having been committed; the mere presence of two others is enough to have you charged. We have seen the result of that in the infamous case where five suspected bikies were arrested in the Yandina pub in November and charged under the new laws. They were denied bail and remanded in solitary confinement until a hearing. Months later, one is still incarcerated. Freedom of association is a vital democratic right. The fact that the Newman government are willing to rip it away just shows how little they understand its importance. Nor do you have to be a member of a bikie gang itself. There are provisions that state that anyone 'who has taken part on any one or more occasions in the affairs of the association in any other way' can also be subjected to the same draconian rules—like librarian and mother of three, Sally Keuther, who was arrested and held in custody for six days after she wore club colours at a Dayboro pub with her partner and another man, who were both alleged associates of a declared lawless association. Mrs Keuther now faces a mandatory six-month jail sentence. However, I am not sure this means that the people of Queensland will sleep safer in their beds at night.
The laws also remove the presumption of bail, which has raised the shackles of many who see this as a direct act of political interference. Supreme Court Justice Fryberg stood up for the independence of the judiciary, when he stayed a bikie bail application after voicing concerns that the government was trying to influence his court.
But these laws do not stop at removing the right to freedom of association, reversing the onus of proof and weakening judicial independence. The Premier himself insinuated that members of bikie gangs do not even have a right to legal representation when he accused lawyers who represent the accused of being 'hired guns' of the 'criminal gang machine'. These are outrageous comments that give us great insight into the government's outrageous disdain for due process.
And it gets even worse. Once charged, the accused can be locked in solitary confinement for up to 23 hours a day, in a space reported to be the size of a dining table, with half the standard daily food rations and no access to gym equipment or a television. Tony Fitzgerald captured the inhumanity of this situation when he said:
It is incomprehensible that a modern, informed, civilised community like Queensland is unnecessarily imprisoning accused persons in solitary confinement before they have even been tried and unnecessarily incarcerating convicted prisoners in solitary confinement for years.
In a further act of puerile chest beating, the conservative Queensland government also dresses accused persons in pink overalls, as if it somehow believes that there is a link between humiliation and a reduction in the crime rate. This is nothing more than juvenile bullyboy antics that do not befit our elected representatives.
Those group members who are charged with a serious crime will have an extra 15 years added to their sentence. For group office holders, the mandatory time to be served goes up to 25 years. The right to parole is also revoked during the mandatory sentence period. This is fundamentally undemocratic and tears to shreds the concept of all being equal in the eyes of the law.
On the issue of mandatory detention New South Wales Bar Association president, Phillip Boulten SC, said:
It isn't effective, it's not a deterrent, it just leads to more people being locked up for no good purpose.
But even if mandatory detention did work, it is absolute lunacy to sever the link between the crime and the punishment and to impose mandatory sentencing only if the accused happens to be a member of a declared association.
An effective law punishes an individual for the crime they commit, not for belonging to a group. We must all be treated equally in the eyes of the law, whether we happen to be a member of a motorcycle club, a union or any other group.
Even recently installed freedom commissioner Tim Wilson has issues with Newman's laws, saying they are:
… a demonstration of the worst consequences of what happens when people are treated as groups under the law, and not as individuals.
He elaborated, saying:
The imprisonment of people for free association that are not otherwise engaged in criminal activity is deeply, deeply disturbing. The fact that other states have and continue to look at replicating these laws is equally disturbing.
Wilson, once described as 'a veritable geyser of right-wing steam', seems like an unlikely civil rights campaigner, so you know that something very serious is going on if he feels the need to speak out.
We now hear that the Queensland government plans to revoke trade licences for members of declared organisations. Not only that, but tradesmen who lose their licences will not even be told of the information that stripped them of their livelihoods.
It has been pointed out that even terrorists get a right of appeal. However, we will soon have a situation where people who have not been charged with any crime could have their ability to earn a living cruelly ripped away. As Queensland Council for Civil Liberties vice-president Terry O'Gorman put it:
To deprive someone of their livelihood, thereby pushing a family into poverty on the basis of evidence that person can never see is an abomination.
The Attorney-General has said that motorcycle gangs are heavily involved in illicit drug markets, vehicle rebirthing, firearms trafficking, serious frauds, money laundering, extortion, prostitution, property crime, and bribery and corruption of officials. If this is so, then I fully support using the full force of the law to punish people for these crimes. But—and this is such an important 'but' that I cannot overstate it—a crime must be committed first. We already have laws to define and respond to crime. If the government is unable or ill-equipped to capture these criminals and charge them, then perhaps it needs to have a closer look at police resourcing.
In this area, as in all areas of public policy, we need to look rationally at the nature of the problem and determine the best means of solving it. Knee-jerk dog-whistling will do nothing but make people fearful and set up dangerous divisions within our community. The reality is that, according to Queensland police data, bikies are responsible for less than one per cent of crime on the Gold Coast—and in surrounding areas—which the Premier is targeting as a key problem area. Similarly, criminology professor Arthur Veno from Monash University put the national figure at 0.6 per cent—which is hardly an epidemic.
But even if bikie crime was a serious problem, are these laws an effective way of dealing with it? Have they worked? A recent analysis of data from the Queensland police would suggest not. In fact, of 817 charges under this legislation, only 28 fell into the category of organised crime, such as drug trafficking and extortion. Despite the massive police resources dedicated to the operation, only one per cent of all offences in Queensland during the period of the report can be attributed to bikies, and charges against bikies accounted for just 0.8 per cent of total drug supply offences in the state.
In the hoopla of hysteria and spin over bikie crime, with government minds and police resources solely focused on addressing less than one per cent of crime, it is little wonder that the other 99 per cent of criminals are getting a free ride. In this context, it is not surprising that crime has actually increased by two per cent in the last year, according to the national Report on government services 2014 released at the end of January. It is also not surprising that Queenslanders are up in arms about the draconian new regime they find themselves lumbered with. It only adds insult to injury that the government will not listen. Not only will they not listen, but the Premier is spending in excess of half a billion dollars on a shiny advertising and PR campaign to convince Queenslanders that having their civil rights thrown away and due process trampled on are actually good things—and all the while bleating about a budget emergency used to justify harsh cuts to vital services.
Tony Fitzgerald put it perfectly when he warned that:
Arrogant, ill-informed politicians who cynically misuse the power of the state for personal or political benefit are a far greater threat to democracy than criminals, even organised gangs.
I speak today because I believe democracy is being ruthlessly trashed, but I also speak because I believe there are some compelling—and disturbing—parallels between the strategies of the Liberal government in Queensland and those of their counterparts in this place. Firstly, both governments trade heavily in the politics of fear and division and scapegoating, and use them to scare the electorate into accepting serious attacks on civil liberties. Secondly, we have seen a growing trend in both governments to act without consultation and to actively avoid expert opinion. Worryingly, a transcript on the Prime Minister's own website outlines his position with crystal clarity. When asked about the Newman government's abhorrent legislative regime, Mr Abbot's response was:
I fully support what Campbell Newman is doing. Minister Keenan has been here in Queensland to talk about how the Commonwealth can cooperate with the State Government here and potentially State Governments elsewhere on this kind of crackdown.
I was very pleased to hear today that my Labor colleagues in Queensland have taken a stand and are committed to repealing these laws in favour of an objective, evidence-based assessment of the situation. I also support the High Court challenge, and I hope that our highest court of appeal can restore democratic principles to Queensland's rapidly devolving law and order regime.
I rise to talk about rights in the 21st century: what do they look like, what are they, and what should they be? In 2014 in Australia the representation of Indigenous people in prisons is grossly out of proportion with their number. Indeed, they are some of the most imprisoned people in the world. Despite this, they are subject to increasing cuts to Aboriginal and Torres Strait Islander legal aid—the very legal services that will assist in reducing their incarceration. These cuts also extend to the general legal assistance sector, where community legal centres and legal aid commissions are increasingly unable to meet increasing need, with serious consequences for everyday Australians, including poor health and mental health, homelessness and lost productivity—which then of course flow on to the community.
I have worked actively on these issues about ensuring that Australians can have access to justice and access to the legal system that we all rely on to determine our rights, and the ability to influence and enforce those rights. But the concept of 21st century rights is much broader than these issues alone. We have a federal government that has appointed a freedom commissioner as the Australian Human Rights Commissioner, with a mission to advance traditional human rights—but this will be at the cost of the right not to experience discrimination, which is still such an important need for many Australians in 2014. We have state governments introducing laws to restrict traditional rights, like the right to freedom of association, in Queensland, and the right to peacefully protest, in Victoria. We have judges whose judgement and discretion are being increasingly constrained by mandatory sentencing, with no evidence at all that it actually does anything to reduce crime.
Governments must respect and acknowledge the judiciary as an essential and independent third limb of government and be willing to recognise and acknowledge the importance of having a separation of powers to avoid a dangerous concentration of power in any one of the three arms of government—the legislature, the executive and the judiciary.
We have courts in a quandary about how to balance the principle of open justice with the rise of social media, which means essentially that all citizens can now be journalists and all juries are subject and vulnerable to pre-trial publicity.
We have national security laws that have been found to be excessive by the government's own independent monitor and the Council of Australian Governments, but which no government so far has been willing to fix.
I want to turn to freedom and freedom from discrimination. The Attorney-General has appointed a Human Rights Commissioner who will be known as a 'Freedom Commissioner'. In making this appointment the Attorney-General has purported to 'restore balance' to the Australian Human Rights Commission. Tim Wilson, the appointee, made an immediate commitment to refocus the commission on defending free speech rather than focus on anti-discrimination work. Are we now balancing freedom from discrimination with the freedom to discriminate?
Dr Tim Soutphommasane, Mr Wilson's colleague and the Race Discrimination Commissioner, gave a speech on Monday at the Australian National University. He raised the crucial question of what freedom must mean in a multicultural society such as ours. He asked: what are the proper limits of free speech consistent with racial tolerance? In light of the profound harm that racial vilification causes to individuals and families, his view is that the Attorney-General's proposed changes to section 18C of the Racial Discrimination Act are not warranted.
The Greens will oppose any such changes. We do not agree that the balance has tipped too far in favour of those who experience discrimination. Indeed, although the previous government dropped the draft consolidated Human Rights and Anti-Discrimination Bill in 2013, we want it kept on the agenda—and, in fact, broadened. The fact that we still have religious organisations in Australia, particularly schools, that enjoy a major exemption from anti-discrimination law, is not good enough. The fact that students and staff enjoy protections in the community that they do not and cannot enjoy at school or in the workplace is not good enough.
The Greens absolutely agree that freedom of speech must be balanced carefully with people's freedom from vilification and discrimination, and the resulting humiliation, indignity, health impacts and diminution in civic participation. Our international obligations alone demand this.
I also wonder about the implications of the increasing crackdown by states on civil liberties that we are seeing in Australia in 2014. Queensland has thrown freedom of assembly out of the window with a raft of laws, ostensibly aimed at motorcycle gangs, that senior lawyers say breach human rights. The Vicious Lawless Association Disestablishment Act makes the gathering of three or more bikies or their associates unlawful. The laws impose mandatory minimum sentencing, in some cases of 15 to 25 years, and breach our international civil rights obligations.
There have been some recent egregious examples of the application of these Queensland laws. We saw five Victorians who were holidaying on the Gold Coast—ostensibly so-called 'bikies'—who were arrested after dinner one evening because of their association with each other and, on remand, they were required to be in solitary confinement, without natural sunlight, for periods of up to 23 hours per day. These people were on remand. They had not been convicted or found guilty of any offence—indeed, they were not charged with an offence that suggested they would be a risk of harm to others; it was the association offence with which they were charged. So these people, presumed to be innocent because they had not been found guilty under our system of law, were essentially forced to be in solitary confinement for a period of time. This is a very, very disturbing development in the way that laws are being generated in Australia. Although I am certainly no friend of criminals, and no friend of those who would seek to harm others with their criminal behaviour, I am also no friend to laws that have the potential to affect any members of our community who fall into disrepute or those who are impugned by their association with others, in this century, at the behest of state governments.
Another example of the application of these laws, and the great disquiet and concern that they have generated, involves the three cases in Queensland where Supreme Court Justice Peter Applegarth actually refused to impose the maximum penalty on the three defendants involved. These so-called bikies would have been sentenced—as in the previous case—to face solitary confinement without natural sunlight for periods between 22 and 23 hours a day. Rather than the maximum penalty of six months, Justice Applegarth actually commented on and described these conditions as being extremely harsh, cruel and unusual and, as a result, in response to his view about the inappropriateness of these penalties, he reduced the sentences in each of the three different cases to a period of four to six weeks.
These are examples of the way in which there is a risk that governments are seeking to use laws to prosecute their political agendas as much as their professed aim to make society safer—particularly when there is no evidence that these kinds of conditions or mandatory sentencing regimes will actually have the effect of reducing crime. The question we all have to be asking in relation to these anti-association laws is: if they are coming for these people today; who might they come for tomorrow?
In New South Wales we have the government introducing mandatory sentences for one-punch assaults and flagging that it would consider extending mandatory sentencing to other sentences. Again, this takes away the ability of a judicial officer, who is the one person who has the capacity to know all the circumstances of an offence, to weigh those up and to use discretion to come up with what is considered, in the view of that person who has those facts available to them, the best and the most appropriate penalty. Like Queensland lawyers who have opposed Queensland's new laws, the New South Wales Bar Association maintains there will be injustice wherever mandatory sentencing applies, because it is a solution to crime in appearance only.
Victoria has passed laws described as deeply antidemocratic, with massive increases to police powers to move on workers and activists engaged in peaceful protests, pickets and demonstrations. With these 'move on' laws, they have provided a broad range of discretionary powers to the police which give them the ability to move on workers, activists and others engaged in peaceful protests, pickets and demonstrations. Again, this attacks fundamental rights in Australia to freedom of assembly and freedom of association. Again, these laws have attracted criticism from lawyers, community legal centres, the independent media and many, many concerned citizens.
I ask: what has our newly appointed Freedom Commissioner to say, in particular to these 'move on' laws that have been introduced in Victoria? I understand that he has been silent on this specific issue. However, a tweet that he made at the time of the Occupy Melbourne protest is perhaps the closest hint as to what he might think about them. He said that freedom of speech is different from the freedom to be heard. He described the Occupy Melbourne protesters as time wasters and he suggested that the water cannons be sent in.
Legal experts who have the temerity to speak out on these sorts of backward state laws have come under fire themselves. The Queensland Premier, facing criticism of his proposed anti-bikie laws at the time, said that lawyers and the judiciary were living out of touch with society and do not understand what the community wants from the law. I was very interested to meet and have dinner with some concerned people recently. They are friends from Melbourne who are not particularly political. They are probably quite conservative in their thinking. They raised the issue of the five Victorians on holidays on the Gold Coast who were remanded in solitary confinement for associating with each other. My friends expressed their extreme dismay at the way those laws were going. I was interested to think that in fact there is a great deal of disquiet in the Australian community generally about the trend with which these laws are being taken up.
Will the federal government affirm the integrity of the judiciary and its essential role as a third limb of government? Will it acknowledge lawyers' professional obligations to represent people in our system of law—which is an adversarial system and relies on not only a prosecution but a defence so that we can actually have some faith that the end result of the process may be a fair one—and also acknowledge that, in any event, lawyers have an overriding duty to the court not to mislead the court? And will the federal government distance itself from the retrograde legislation that we are seeing around the states that dispenses with some of these long-held legal principles?
Another issue that poses the question 'What are our rights in the 21st century?' is that raised by the Chief Justice of Victoria, Marilyn Warren, in her annual Redmond Barry Lecture last year, when she summarised the dilemmas that all courts are now facing as open justice faces the technological age and the changes that have been made and the ability of people to inform themselves about what has occurred before they are involved in jury trials, for instance.
There are also increasingly important questions about how national security is to be balanced with people's rights, and so we have recommendations from both the government's own Independent National Security Legislation Monitor, Senior Counsel Bret Walker, and the COAG, the Council of Australian Governments, which have serious concerns about preventative detention orders and control orders. These are generally considered to be excessive, but no government has been willing to fix these regimes at this point.
So it is time to refine our thinking about these 21st-century rights: access to justice, freedom from discrimination, nationally consistent civil liberties, how we deal with open justice in the age of technology, and appropriate national security laws and the reforms that are generally agreed to be needed to those. These rights would seem to be a good place to start with for this century.