Proposed crime prevention orders in NSW go a step too far in restricting offenders

The proposed introduction of “serious crime prevention orders” is the New South Wales government’s latest move in its crackdown on organised crime and bikie gangs.

A bill before state parliament will, if passed, enable significant restrictions to be placed on a person’s liberty after they have served a prison sentence for a serious criminal offence – or even if they have been acquitted of, or never tried for, a criminal offence.

Imposing significant restraints on the liberty of a person found not guilty subverts the ordinary criminal justice process.

The powers are based on similar laws introduced in the UK in 2007. They resemble existing civil orders and post-sentence powers in Australia that target high-risk offenders, sex offenders and those involved in terrorism. However, the NSW regime will make similar powers available in relation to an extraordinarily wide range of offenders.

What are the proposed powers?

The bill would allow the Supreme or District Courts to make an order if the court is satisfied that a person has been convicted of a serious criminal offence or involved in “serious-crime-related activity”. If the person has not been convicted of a criminal offence, only the Supreme Court may make the order.

The Police Commissioner, the Director of Public Prosecutions or the NSW Crime Commission can apply for an order.

An order may contain any prohibitions, restrictions or obligations that the court considers appropriate. This could involve requiring the person to:

• report regularly to a police station;

• obey a curfew;

• wear an electronic monitoring bracelet; or

• comply with restrictions on where they can go and who they can communicate with.

Any breach of these conditions will attract five years’ imprisonment or a $33,000 fine – or both.

An order can be imposed for a maximum of five years. However, subsequent orders could be made against the same person.

Similar legislation

The regime will not be unique in allowing post-sentence restrictions to be placed on serious criminal offenders. In NSW, high-risk violent and sexual offenders may be subject to similar restrictions following their release.

Federally, control orders may be placed on people who have previously been convicted of a terrorism offence. Orders may also be imposed on people who have not been convicted of any offence, if doing so would substantially assist in preventing a terrorist act or the support or facilitation of terrorism.

The federal government is planning to introduce further legislation to allow for the post-sentence detention of people convicted of terrorism offences.

Key issues

Whereas post-sentence supervision powers have in the past been reserved for violent offences, sexual offences and more recently terrorism, the NSW bill would apply these powers to a much wider range of crimes.

The bill defines a serious criminal offence as one that is punishable by five or more years' imprisonment and involves: theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide.

The list also includes many drug and firearms offences, and the offence of dishonestly damaging property.

A person need not even be convicted of any of these crimes. An order could be made in relation to a person who has been tried and acquitted of a serious criminal offence. An order may also be sought against a person who has facilitated serious criminal activity, or engaged in conduct that is likely to facilitate such activity.

This represents a significant departure from the high-risk offender legislation. Supervision orders for high-risk offenders can be sought only against people currently serving sentences of imprisonment.

The legislation undermines the presumption of innocence and the principle of finality in court decisions. The latter is designed to ensure that police, prosecution and courts “get it right the first time”.

The bill would also set a much lower standard for assessing the risk the person poses to the community.

High-risk offenders can be subject to post-sentence restrictions only where the court is satisfied of an “unacceptable risk” that the person will commit another violent or sexual offence. This bill will only require a reasonable belief that the order would protect the public by preventing or limiting the person’s involvement in serious criminal activity.

The bill may raise constitutional issues. While the separation of powers is not as strict at state level compared to the federal level, state parliaments cannot pass laws that impair the “institutional integrity” of their supreme courts because those courts can exercise federal jurisdiction.

The High Court has upheld similar regimes in other contexts. Examples include Queensland’s post-sentence regime for sex offenders and the federal control order legislation.

However, it is difficult to discern any pattern in these constitutional challenges against state laws. And this bill certainly departs from existing regimes in many striking ways.