Ch-ch-changes to NSW crime laws

Rebecca Wong turns and faces the reality of legislative amendments by the O’Farrell government

NSW tough on crime chalking piece-1
Image: Mikaela Bartels

New South Wales Premier Barry O’Farrell is often praised by the left (and repudiated by the right) for his ostensibly progressive policy platforms. In particular, his support for same sex marriage and the Gonski education reforms are invoked as evidence of a more moderate, pragmatic approach than that of his federal counterpart, Tony Abbott. However, the past parliamentary term has seen a raft of tough new crime laws passed with little public outcry.

In keeping with the trend of incumbent governments claiming to be “tough on crime”, graffiti laws passed in 2012 allow courts to punish young people in ways completely unrelated to the spray paint on the wall that landed them there in the first place. Courts can now, for example, delay young people’s attainment of their full licence, and limit the number of demerit points they are permitted. These unrelated, punitive provisions seem arbitrary and largely incomprehensible.

An amendment introduced recently to the Legislative Assembly proposes to outlaw the intentional marking of any premises without the permission of the owner. Greens MP David Shoebridge asserted that the amendment technically outlaws children’s hopscotch squares. To this, the Attorney-General responded that police would employ “discretion” when applying these laws, all but confirming the way this law, and many others, are invented to give police a reason to arrest (for example, lower class, non-white, youth) troublemakers.
More broadly, it is indicative of the government’s slapdash approach to drafting legislation in its eagerness to curb what one media release described as “the scourge of graffiti”.

Of particular concern is the government’s alteration to the right to silence for criminal suspects, in a misguided attempt to crack down on organised crime. Juries are now able to draw an adverse inference from evidence submitted by a defendant if it was not raised during initial police questioning. This may sound like a mere technicality, but it effectively requires defendants to possess an unreasonable degree of foresight in predicting what evidence may be relied upon in court.

Unlike the UK, which introduced similar changes in 1994, the NSW model does not include the provision of legal advice for suspects. Phillip Boulten, Vice-President of the NSW Bar Association, described the amendment as “a back-door way of changing the onus and standard of proof which has for centuries been on the Crown”.

The highly-publicised change compounds the already daunting pre-trial and court experiences for vulnerable, disproportionately represented groups, such as Indigenous people, youth, and the poor. It is seen by many as a response to the high visibility of gang-related crime over  the past few years. However, the provision is not merely reactionary; it represents an attack on the separation of powers, which (in theory) keeps elected officials accountable by allowing citizens to challenge unfair or oppressive laws via the courts. It also evidences a legislative contempt for the views of defendants and lawyers – those with the greatest exposure to the criminal justice system.

Due to budgetary constraints, Legal Aid NSW will no longer be providing free legal advice on compensation matters to the disabled, those with mental illnesses, and children. Most fascinating about this decision is that Legal Aid stands to lose even more funding if they attempt to lobby the government for more. While this funding cut harms some of the most marginalised in our society, just by pointing that out, they will be defunded further. Meanwhile, the Liberal government’s new Victim Support Scheme, which handles compensation to victims of (inter alia) domestic violence, sexual assault and child sexual abuse, will offer reduced payments.

To a large extent, these changes reflect the constant, irresolvable tension between the competing goals of time and resource efficiency, universal access and fair outcomes. It’s a pity such issues apparently rank alongside the “scourge of graffiti” on the NSW government’s agenda.

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