Yesterday, the NSW Parliament passed two bills granting new powers to state police, one related to public safety orders (PSOs) and another to serious crime prevention orders (SCPOs).
The Law Society of NSW warned the bills may target organised crime but can be used against a broad range of individuals, including those not charged with an offence.
President Gary Ulman said the bills were the latest in an ongoing trend of encroachment on individual rights and liberties in the state.
"The first of these bills allows for ‘serious crime prevention orders’ to be issued against a broad range of individuals – which could seriously impact individual freedoms," he said.
The second, he continued, would allow police to issue "public safety orders" preventing individuals from attending specified venues, with breaches punishable by a maximum prison term of five years.
"This significantly expands police powers, including warrantless search powers in some circumstances,” he said.
"I am concerned and the community should also be concerned about the extension of executive – and therefore unelected – powers proposed by the bills, which could erode long-standing rights including the presumption of innocence, the right to a fair trial, the right to property, and the right to be protected against double punishment."
In submissions released this week, the NSW Bar Association has described the proposals as unconstitutional and an unnecessary threat to both individual freedoms and the rule of law.
The power to implement PSOs will lead to the “arbitrary and excessive interference” with individual liberty and freedoms, the Bar Association said, “irrespective of whether [a person has] committed or is likely to commit a criminal offence”.
“The powers to constrain freedom of assembly, association, expression and movement to be conferred on police are sweepingly broad, and not subject to any substantial legal constraints or procedural safeguards, and subject to flawed and legally objectionable oversight in which there are inherent elements of unfairness," it added.
“The bill represents a significant encroachment on freedoms of assembly, association, expression and movement, based upon the satisfaction of a senior police officer – and in the case of urgent orders, any police officer, potentially a probationary constable.”
According to the NSW Bar Association, no case has been made by the government to answer why such powers should be conferred on the police “at all”, particularly in light of declining crime rates in NSW.
Furthermore, there has been no public debate about the bill or explanation as to why such “broad and far-reaching powers should be conferred on the police”, the association said.
The NSW Bar Association raised special concern for the “exceedingly low threshold” used to determine who or what poses a ‘serious risk’ under the legislation.
The submission also flags the scope for urgent orders to be conveyed verbally, that PSOs can target children and persons with impaired intellectual functioning, and that in many cases there is no means of knowing the police basis for making a PSO as problematic.
“The NSW Bar Association opposes the bill. As with the SCPO Bill, the NSW Bar Association is concerned at the manner in which a bill with such serious implications for the liberties of persons in NSW was introduced in Parliament.
"It occurred without any prior consultation with appropriate legal professional bodies, law reform agencies or civil liberties organisations.”