Page 434 - Week 02 - Wednesday, 20 February 2019
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community group were to raise another circumstance that might result in this bill being misapplied, we are happy to look at that.
Next, and very importantly, it does not apply to young people. This is one of the key introductions since the Ombudsman’s report in New South Wales. As drafted, age is a threshold; unless they are over a certain age, none of the bill applies, and that age is set at 14. Also—and, again, this is a change that has applied in New South Wales in response to their Ombudsman’s report—it includes special recognition of and protections for Aboriginal and Torres Strait Islander people. In addition, the operation of the entire act will be subject to the Ombudsman’s oversight.
The last fact we have to face is the fact that started this entire spiral into outlaw war. The fact is that New South Wales has these laws and we are an island within New South Wales. It is a jurisdiction that completely surrounds the ACT. These laws were reaffirmed late last year by the New South Wales parliament. It is a fact that the difference in protections between the jurisdictions has caused the attraction of more criminal gangs to the ACT and the escalation in violence. It follows that nothing less than parity with New South Wales will address this problem.
There have been calls for nationally consistent laws to deal with organised crime activity for some time, and I support that. However, in the absence of those laws, the very minimum standard that will be effective in achieving the stated purpose of community safety is to mimic as closely as possible the laws in New South Wales. The simple fact is that we believe the rights of the many innocent people in our community deserve protection more than the rights of the few who repeatedly associate with known criminal offenders, even after they have been warned.
The legislation that this bill was modelled on was examined by the High Court. While the New South Wales legislation exists under a different jurisdictional framework, there are some pertinent parallels. In the High Court they considered these laws and whether the restriction was for legitimate purposes, and it was found that it was. I quote:
New South Wales submitted that the legitimate object or end of s 93X is to prevent or impede criminal conduct by deterring non-criminals from consorting in a criminal milieu and deterring criminals from establishing or building up a criminal network. That submission should be accepted.
The High Court also considered the New South Wales laws under the International Covenant on Civil and Political Rights, an international human rights covenant that in some ways mirrors our own Human Rights Act, and held as follows:
… it was submitted that the Parliament of New South Wales could not enact a law infringing upon the “right to freedom of association with others” set out in Art 22 … to which Australia is a party. There is no authority which would support such a proposition.
The High Court considered whether there were any other lesser means by which the same ends could be met. The High Court found:
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