Criminal Investigation Amendment Bill 2009
Extract from Hansard – 12 November 2009
Ms A.S. CARLES: I do not support this legislation and I will not be supporting the Labor Party’s amendments because this legislation is beyond repair. It is a fundamental attack on civil liberties —
Mr E.S. Ripper: So when the division comes, you will join with the Liberals to vote against parliamentary accountability. That is a good story for the Greens.
Ms A.S. CARLES: I am saying that this legislation cannot be supported in any form and the Opposition’s amendments are just window-dressing.
Mr E.S. Ripper: You are going to vote against accountability. You’ve got to think about what you will be doing. You will be voting with the Liberals against accountability.
Ms A.S. CARLES: The Labor Party’s amendments do not go to the heart of the problem, which is the unprecedented stop-and-search powers for the police. How interesting that the Leader of the Opposition talks about checks and balances on discrimination. What a joke! Stop the discrimination in the first place. Oppose the discrimination. Do not put checks and balances on discrimination. What a disgrace!
Extract from Hansard – 11 November 2009
MS A.S. CARLES (Fremantle) [9.02 pm]: I rise to discuss this bill and put on the record that the Greens do not support the bill. That is hardly surprising, I am sure, to the members in this chamber, and nor do we support the amendments to be moved by the opposition.
Mr R.F. Johnson: That’s good, you’ll vote with us when we vote against them.
Ms A.S. CARLES: We do not support legislation that removes safeguards for civil liberties, that marginalises disadvantaged groups even further and that ultimately may cause more problems than it seeks to solve. An unintended consequence of this bill is that it may lead to more offences being committed. We can easily imagine the scenario of innocent people resisting being searched and the episode escalating into a mandatory detention issue if a scuffle or fight ensues. I quote from WA ethics expert, Stephan Millett, who said this to the media on 31 October —
It only takes an inexperienced officer or a good cop having a bad night for the new laws… as if they were about to do anything wrong.
This bill is unprecedented in Australia. No statistics or research has been provided to justify these changes. I fear that, once this becomes law, it will be impossible to wind back because of bidding wars that we see on which government can be the toughest. It will take a very courageous government to wind it back once it is in place.
The bill also raises issues about our new auxiliary police. Remember; they are the ones without the pay and training of the police force, but they have all the powers of police. Will our auxiliaries be exercising these new powers?
Mr R.F. Johnson: No.
Ms A.S. CARLES: That is a definite no.
Earlier the Australian Institute of Criminology published a study called “What Australians Think About Crime and Justice: Results from the 2007 Survey on Social Attitudes”. It is interesting to put some of these on the record. A key finding was that a large majority of the public have inaccurate views about the occurrence of crime and the severity of sentencing. Consistent with previous Australian and international research the Australian public perceives crime to be increasing when it is not; it overestimates a proportion of crime that involves violence and underestimates a proportion of charged persons who go on to be convicted and imprisoned. Another key finding was that fear of crime is associated with decreased confidence in the criminal justice system and more punitive attitudes. The bottom line is that we should be passing laws based on evidence not misconceptions. The report also found that, in responding to a scenario in which the government suspected a terrorist act was about to happen, 54 per cent of surveyed respondents supported the government having the right to stop-and-search people at random. I wonder what the respondents would think about this random right to search—without the threat of a terrorist act—that we are debating here today. I think many people would be very alarmed by it.
I will talk briefly at proposed new section 70A(4) because it is the heart of the bill that provides the additional powers to search. This provision permits a police officer to do a basic search of a person and his vehicle. It lacks any of the usual limitations for this type of search power that are built into safeguard citizens of Australia. There is no search warrant requirement. The reasonable suspicion test has been abandoned, and there is no requirement for consent of the person to be searched or, alternatively, to give the person the opportunity to leave the place, rather than undergo a search. In essence, therefore, police are permitted to search anyone they like for whatever reason they like, regardless of any biases or prejudices they may have in reaching that decision. There is no opportunity for the person to refuse this. Further, because the declaration is published only in the Government Gazette and it is not invalid if the commissioner fails to do this, people will not realistically be able to avoid areas where these powers are to be exercised, unless of course, there are big signs warning them that they are entering a random search zone.
There are major issues that go with this bill, such as for minors under 18. There is nothing in the legislation requiring a parent or guardian to be present when children are to be searched. There are major issues for Indigenous people, but that is another topic. We all know they will bear the brunt of this search power. There are major issues also for people from different ethnic backgrounds, mentally ill people and women out at night.
Ms A.S. CARLES: Yes, women. I will tell members about them in a minute. Without the test of reasonable suspicion, the police risk searching people on a discriminatory basis. This is an erosion of our fundamental right to go out at night about our own business without being harassed. There will be nothing to stop a group of policemen about three o’clock in the early hours of the morning deciding that they will search a group of young women who are out binge drinking or getting drunk—nothing at all to stop them doing that. There is nothing to stop them searching a group of Aboriginal people because they are Aboriginal people; a group of Chinese students because they are Chinese students; or a group of gay men because they are gay men. We have one word for this. It is called discrimination.
Ms A.S. CARLES: The member for Wanneroo may well ask that.
Ms M.M. Quirk: If the member for Wanneroo thinks it is so funny, he may want to contribute to the debate.
Ms A.S. CARLES: I briefly turn to the opposition’s amendment base. As I said, the Greens cannot support them. It is really interesting to hear what opposition members have been saying about this over the past 48 hours. The tone of the debate is reminiscent of the mandatory sentencing debate. Most members opposite have been very passionate in their opposition to this legislation. The member for Armadale said it is the most troubling piece of legislation she has seen in her 16 years as a member. The member for Forrestfield said it is the most fundamental single attack on civil liberties and the member for Maylands said she was pretty horrified.
Mr A.P. O’GORMAN: The member for Fremantle appears to be reading from the blues—the uncorrected proof.
The ACTING SPEAKER: I know that the member is new to the place but she cannot quote from the uncorrected Hansard.
Ms A.S. CARLES: That is fine. I think I have made my point. Members opposite were very passionate about what they were saying and I could not agree more with most of their comments. It is therefore surprising that the opposition’s amendments are weak and do not go to the heart of the problem that we are looking at. They merely tinker at the edges of this fundamentally flawed legislation, which is why I cannot support them. For instance, the first amendment relates to section 10 and suggests that an interpreter should be at hand and, if an interpreter is not at hand, the police officers will carry around translations for people who do not understand English so that the police can explain their rights to them. The whole problem is that people do not have rights in this situation. Will the translation say, “Dear sir or madam, we are going to search you whether or not you like it, with or without your consent”? It is absolutely ridiculous.
Ms M.M. Quirk: It is better for someone who does not understand English to know what the hell is going on. At least it will give them an inkling of what is going on.
Ms A.S. CARLES: I think this legislation should not be supported in any way.
Ms M.M. Quirk: We may well come to that position but we are giving the government a chance to do the right thing.
Ms A.S. CARLES: Okay. I say that the legislation is beyond being fixed and that we should not condone it. It is draconian and unprecedented and should not be supported.