Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 Second Reading

4 Sep 2018

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I am going to speak on the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018, which proposes two changes: to amend the Criminal Organisations Control Act 2012 regarding unlawful association offences and to abolish de novo appeals for criminal matters in the summary jurisdiction, replacing them with a new appeal process. Yes, the Greens do oppose both these proposals, but I will focus on the anti-association aspects of the bill.

It is not just the Greens who oppose this bill; it is also the Law Institute of Victoria, Liberty Victoria, community legal services and the Youth Affairs Council Victoria. The Criminal Organisations Control Act currently provides that a person aged 18 or over can be served with an unlawful association notice if a senior police officer believes that the person has previously associated with an adult convicted of an indictable offence and a criminal offence is likely to occur from their future association. A person can be served with a notice and charged with unlawful association if they subsequently associate with the convicted person three times in three months or six times in 12 months.

This bill proposes to amend those laws by lowering the rank of a police officer authorised to issue an unlawful association notice from senior sergeant to sergeant, except when issuing notices to vulnerable persons. This scheme now includes children by allowing police to issue unlawful association notices to innocent children aged 14 and over, and in regard to association with convicted children aged 14 and over. It removes the requirement for police to reasonably believe that preventing association is likely to prevent the commission of an offence when issuing that notice. There are also changes to the criteria for an unlawful association violation, and the bill mandates that the Independent Broad-based Anti-corruption Commission monitor and report on the scheme.

We oppose these unlawful association laws and these amendments, not just because they are unworkable and not just because they are an affront to those fundamental human rights of freedom of assembly, of movement and of association and to the presumption of innocence, but also because they will not work and they are simply going to capture the most vulnerable people who are not guilty of a crime.

We have already seen this occur in New South Wales, where these laws originated. By removing the ‘adult’ and ‘organised crime’ aspects of the unlawful association laws, this bill is simply copying the New South Wales legislation. The New South Wales Ombudsman has released a highly critical report of the New South Wales laws, showing that these laws were not targeting serious organised crime, that they were often used unlawfully and that they unfairly and disproportionately affected vulnerable people, including children and Aboriginal people. The Attorney-General is saying that despite this bill being based on these New South Wales laws, it will not have those problems, even though the first recommendation of the New South Wales Ombudsman was to remove children and people under 18 from this scheme. Yet with this bill — ‘Let’s put it in’.

The other protections that the Attorney-General has included in this bill do not stack up. The bill states that a police officer of the rank of sergeant should not issue an unlawful association notice and that such a notice should not be issued for a period greater than 12 months, yet it states that if this does occur, then that notice is entirely valid and the only way to then stop it is if the person who has received the notice effectively prosecutes a review process. So the vulnerable person needs to use the legal system to prove that they are not acting unlawfully. These protections are supposed to address power imbalances, not actually facilitate them. It is incredible.

This is the second time that this government has introduced unlawful association laws. The first time was in 2015, when the Attorney-General stated that the government needed to address the shortcomings of the existing laws because those laws had not been used since 2005. Now we are being told that the laws of 2015 were too complex and that they themselves have never been used. We are essentially going through trial and error when it comes to these laws. That is what happens when you ignore evidence-based policy and pursue laws based on political expediency.

The reason that we opposed the law in 2015 was that there already were anti-consorting laws in Victoria. This government seems to believe that they have got to do something, but they are just adding more and more overly complex, frequently unusable criminal laws to the statute books when we have got existing laws.

This time around the government is taking its failed unlawful association laws, which were designed to target serious organised crime and bikie gangs, and applying them to children as young as 14. Incredibly, this legislation removes the requirement that notices only be issued when it is reasonably believed that they will prevent a criminal offence. If the notices are not there to prevent a criminal offence, what exactly are they there for? The government says that this is to prevent convicted criminals from expanding networks by recruiting young innocent people, but what they are saying is, ‘We’re going to protect innocent people’ —

Ms Sandell: By locking them up.

Mr HIBBINS: ‘By locking them up’. They will lock them up for three years or give them a fine that there is no way they can actually pay. The current recidivism rate for young offenders who receive a custodial sentence is 80 per cent. If you are going to start locking kids up, these laws are essentially going to increase the level of crime, increase the level of reoffending and further marginalise those who are already marginalised.

When this government was faced with the issue of crime in this state, it had a choice of taking a different approach — one that reformed our justice system based on evidence. That is what the Greens have been pushing for. We know about the well-established link between levels of disadvantage and criminal offending. But instead, they are just chasing the Liberals down the rabbit hole. They are adopting failed Liberal policies. This government are not showing any leadership on this issue — they had the opportunity. If they had shown it from the start, we would be in a different place, but every single time this comes up, they just follow the Liberal Party in an approach that is going to lead to more crime, more imprisonment and higher reoffending rates. It is not the way to go. This government needs to change course. There are two sitting weeks left, so unfortunately they have only got a short window. This government would be very well served — and this state would be very well served — if it changed course. And do you know what? I reckon politically it would be better for the government if they changed course as well, because all they are doing at the moment is copying the Liberal Party. It is not good for anyone.

Fifty per cent of the prisoners in our jails come from just 6 per cent of the postcodes in this state, yet at the same time only 1 per cent of youth justice expenditure is allocated to early intervention programs addressing the causes of crime. Instead of putting all this money into imprisonment, we need evidence-based policies like justice reinvestment — which has been hugely successful in other jurisdictions — that invest in at-risk communities and actually address the factors that lead to criminal behaviour.

The Greens strongly oppose this bill. We need to shift our focus away from this punitive system that just criminalises more and more young people, and we need to have a multifaceted approach that focuses on the underlying causes of crime and recidivism and addresses these at their source. We can do much, much better than this. The Greens will not support this bill.

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