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Grace, David --- "Civil Liberties Under Threat" [2001] UWSLawRw 7; (2001) 5(1) University of Western Sydney Law Review 83


CIVIL LIBERTIES UNDER THREAT

David Grace

I am not proud to say that Victoria leads the field in repressive policies and in the derogation of civil liberties in Australia. A number of Victorian models, particularly in relation to pre-trial disclosure of defenses and other issues concerning the taking of forensic samples, are likely to be emulated nationally.

We hear the phrase 'law and order' bandied about in the newspapers, radio and TV. We hear it often at election time, but do we stop to think and ascertain what the content of a law and order policy is? How is a law and order policy developed? What are the competing considerations? What are the vested interests at play in the community?

The law and order policy is reflective of the imbalance in the community between the 'haves' and 'have nots'. It reflects social inequality and economic inequality. I will endeavour to explain how that occurs and provide some examples.

Why do we have laws against begging and vagrancy as part of our criminal law throughout Australia? Can someone be convicted of the crime of begging where that person does not have money to feed his or her children? That is the society we live in. Can someone be convicted of the crime of vagrancy when they have not got a home and they are wandering the streets at night sleeping in dump bins and rubbish tins and alleyways? Yes. So crime exists that is based primarily on social and economic inequality. And why are there laws against vagrancy and begging? My opinion is that it reflects what we (and when I say 'we' I mean all citizens) have achieved as a product of the law and order policy. It is a policy that promotes the survival of the fittest - back to the law of the jungle.

When we consider law and order, we do not consider issues such as compassion. The fact is that the less fortunate, those discriminated against and others in the most need of protection receive it the least, and the problem is getting worse.

Draconian laws are passed to win votes and keep politicians in power on the premise of escalating crime. In Wee Waa, all the male members of that community of adult age had to 'volunteer' DNA samples, least they be suspected of having committed a crime that was under police investigation. The weak, the disadvantaged and the powerless are most likely to suffer as the result of the development of such laws.

The sad fact of our system of government is that the legislature has failed the people in developing socially just policies. The High Court and State Supreme Court have, from time to time, tried to redress the balance. Mabo[1] is one example. Dietrich[2] , a case in which I was involved, is another example. The High Court stepped in to create a legal requirement that would redress the social and justice imbalance.

You may recall the fallout from Mabo, and later Wik[3] - the political clamour against the High Court's 'judicial activism'. You will recall the response of the politicians, from the Deputy Prime Minister down. Rob Borbidge, then Premier of Queensland, said the Wik decision was a disgrace and he decried the involvement of the High Court in developing the law. He accused it of undermining parliament and the will of the people.

But why do we have to depend upon the High Court and other courts to be judicially active and suffer such criticism? Judicial activism is not the answer, because the courts can only deal with cases that come before them. If you do not have the right sort of facts, the court cannot intervene. Mabo took 10-15 years to come to court and Dietrich took 2-3 years. It takes a long time to develop the issues and for every Mabo that has been decided, there would be 10 other cases deserving of judicial activism.

Parliament has failed us and we cannot rely upon courts because the number of judicial activists on the courts is not high. The time delays are often lengthy. There is no immediate fix. In the meantime, untold injustice and misery occur. While some members of the judiciary do their best, they stand out like beacons in the night. The predominant attitude of superior court judges is one of conservatism. The only certain way of affecting change is through the political process but politicians are very slow to change.

Professor Tom Campbell, who spoke here recently, said that we should not be looking to the judiciary, rather than the political process, for social justice. Yet, the quality of our politicians leaves a lot to be desired. I agree with those views.

Drugs and 'law and order'

In the criminal law and administrative law fields, with which I am most familiar, there have been some remarkable changes in the past decade that are impacting on fundamental human rights as a result of the clamour for a tougher law and order policy. My opinion is that the reaction has been overkill and an easy way out for government. Will all society's ills be solved by locking up drug addicts who burgle homes to trade goods for some drugs and repeat the cycle three or four times a day, 15-20 times a week? No, because in jail the addiction continues. Drugs are as available in jail, if not more so, than on the outside, and they are cheaper than on the outside. So, are we just perpetuating the cycle?

The figures might shock you, but 70 to 80 percent (the percentage varies between jurisdictions) of all prisoners in Australian jails are there for drug-related crimes. Not all of them are drug addicts - some are drug traffickers or drug importers - but the predominant number, more than 50 percent, are drug addicts. Is that a social problem or a criminal law problem? I suggest it ought to be treated as a health problem and a social problem.

Many commentators, including the ex-chief of the Victorian Drug Squad, are now suggesting trials of safe injecting rooms, because nothing else has worked and the war on drugs has failed. Among them are Professor Pennington, the head of the Victorian Task Force on Drug Law Reform, the Australian Medical Association, the Law Council of Australia and the Victorian Law Institute. All their comments have fallen on deaf ears, at least so far.

If we cut out the drug addicts from the prison system, the jails will empty. If we give drug addicts free drugs, on prescription and under supervised conditions, the deaths from heroine abuse and other drug abuse will cease. The burglaries will stop overnight, as will the armed robberies with the syringes. Not all of them, but 90 percent, I would suggest. And would not that be a better society? So, think carefully when about propositions such as, 'let’s give the police $400 million more money in the NSW budget', 'let’s build more private prisons or more public prisons' and 'let’s make tougher and tougher penalties apply to house burglary or selling half a gram or a tenth of a gram of heroin'. Why not stop all that, look at the root of the problem and divert the money from prisons and police to health issues - to setting up health care facilities for drug-affected persons? Why not divert the $400 million for increased policing to set up those sorts of facilities? The easy way out for governments, the easy political way, is to blame it all on evil people who commit crimes and say, 'let’s throw more money at it and we’ll get rid of them off the streets'. The potential for injustice and for perpetuating inequality increases as a result.

Undermining the presumption of innocence

Much is said about the interests of the victims of crime. I have seen, over the past two decades, thousands of victims of crime and one has the deepest sympathy for them. It is proper to sympathise with the victims of crime and it is acceptable, one would think, for a society to look after them. It is a societal good to redress the balance when society has failed to protect some members of the community but we must not lose sight of the presumption of innocence.

We have politicians on television and reported in newspapers saying, 'Well, we can’t let guilty people get off, so we must make sure that certain procedures are compulsory, such as taking body samples from suspects to match samples found at the crime scene. We’re going to make sure you can’t cross-examine certain witnesses or victims in a particular way. We’re going to make sure that you have disclose your defence in advance of the trial so that we can patch up any holes in the prosecution. We are going to make it a lot harder for guilty people to get off.'

Who decides these people are guilty? You might have victims of crime but do you have the perpetrator of that crime sitting in the dock of the court or languishing in the police cell? Is not that for the jury to decide beyond reasonable doubt? What happened to the presumption of innocence, if people are thinking that just because the police arrest someone, the person must be guilty? If we start with that basic premise, then we may just as well forget about courts and trials - let the police decide because they never make mistakes. If so, the Birmingham Six would never have been released, nor the Guilford Four, nor the more than 100 people on America’s Death Row who have been released as a result of DNA testing.

How do those people get convicted? Through police frame-ups, inadequate defence, procedures that make it difficult for an accused person defence because they are black, Hispanic or Irish. Just because they happen to be in London when a bomb goes off, or a member of the Ananda Marga Sect in Sydney, is that a reason to convict someone? It has happened. How do you protect yourself, if you are a suspect in that situation? Safeguards must be enshrined in legislation that is designed, and developed over centuries, to protect individuals. The presumption of innocence is so important to preserve these protections.

I want to give some examples of what has happened in Victoria in recent years and highlight how the presumption of innocence has suddenly started to disappear. Under the Victorian Confiscation Act and the NSW Drug Trafficking Civil Proceedings Act, you can have your assets confiscated without being convicted. If the Crown satisfies the court on a balance of probabilities - not beyond reasonable doubt - that you were drug trafficking, you get your assets seized. Third parties who may have, for instance, loaned a friend a camera that is found in the home of someone accused of burglary, will have to come to the court and prove that they came by that property lawfully. The onus of proof is on them - the police do not have to prove anything.

Mark Wienberg, who is now a Federal Court Justice, wrote in an article in 1990 that such legislation is draconian, because it reverses the presumption of innocence and the onus of proof. He commented that 'the twin models of due process and crime control agitate with each other creating a tension and ... a turbulent mix'. His prophecy has proved to be correct. Such laws have created a turbulent mix in practice - one that criminal lawyers are fighting on a daily basis.

Allow me to take another development. In 1998, a law came into operation in Victoria enlarging the power of police to take body samples. Previously, police were able to take fingerprints of persons charged with crime but the growth in scientific research and the development of DNA testing has spawned a new range of police powers.

Virtually any serious crime committed, or suspected of having been committed in Victoria, enables the police to request that a suspect undergo a forensic procedure. That involves the taking of a sample from any part of the body, whether intimate or not. Intimate samples are defined as blood, pubic hair, genital, anal or breast swabs, saliva, mouth scrapings or dental impressions. If the suspect refuses a request for any of those intrusive samples, the police can ask a magistrate to order the suspect to comply, and then use reasonable force. I have had the experience where an order has been made, the suspect has refused and next appears in court with black eyes.

Justice Michael Kirby has made four points about the dangers of this compulsion. The first is self-incrimination, and this is part of the abolition of the right to silence. A trend is developing, as it did in Thatcher’s England, to pass legislation to allow a jury to draw an inference of guilt from an accused's silence at the time of first police interview. Compulsory DNA sampling can also amount to self-incrimination.

The second point raised by Justice Kirby is the enhanced power of the state to intervene in the life of the individual. Do we want what happened in Wee Waa to be part of the police armory? The third issue is the risk of tampering with samples. The answer given by politicians and police is that police never tamper with evidence - that there are never frame-ups. How do we know that the hair taken from my head by police in the compulsory procedure is not going to be two hairs taken; one placed at the crime scene according to police and one the sample taken from my hair? How do we know that is not going to happen? Should not there be a much higher test for compulsory taking of samples, not merely mere suspicion on the part of a police officer? What about the risk of error? What if a suspect is put through this compulsory procedure and taken to court and it all turns out to be false - just a whim of the particular police officer? What about the risk of abuse, of police deliberately putting people through that process and the humiliation, shame and embarrassment of it?

Police may say that their approach is in the best interests of the community because they can be certain of the results - they can either exonerate the suspect or prove his or her involvement. But what of the cost to the wellbeing of the community? What of the social implications? What of the distrust caused to police? As I said earlier, scarce public funds, scarce resource - our taxes - are used to promote these procedures when we should be focusing on other issues.

Freedom of expression threatened

It is not just in criminal law that there has been government intrusion to affect fundamental human rights and civil liberties. As but one example, in 1993 the Kennett Liberal government in Victoria promulgated by regulation the Teaching Service Order, which impacted upon all state-employed teachers. It curtailed the fundamental freedom of speech, freedom of political expression and freedom to make political comment that the High Court has enunciated in several cases, both before and after1993. State-employed teachers were instructed not to criticise the state government in any sphere, particularly in relation to education cuts.

Before 1993, there was a vocal teachers' union in Victoria that, properly and responsibly, decried the attitude of successive governments in cutting funds for the state school system. Teachers were vocal against cuts in the budget, school closures, the sacking of teachers, increased class sizes and so on. There was great public outcry, not just from teachers, but from students and their parents.

So, there was a huge political interest in silencing this opposition. The government stopped teachers from complaining by muzzling them, threatening them with dismissal under the Teaching Service Order. What happened to freedom of political expression? Similar regulations are still in force in Victoria, not only in relation to teachers, in a less onerous sense, but also in relation to other public servants. It is even part of the Victorian Constitution Act that you can commit a criminal offence criticising the government if you are a public servant.

This was not challenged until late 1999, in a test case by Geraldine Rawson, a teacher who had been dismissed under this Order. The Labor Party leaders had promised to do abolish the Order because it was a great impingement on civil liberties but, after they were elected in September 1999 they reneged on their promise and so the test case went ahead in the Supreme Court. The Labor government was given the opportunity to reinstate the teacher but refused to do so. The Supreme Court judge held that part of the Order was unlawful[4] . Despite the publicity from that case, the government has still not withdrawn other parts of the Order that were upheld. That is an example in the Administrative Law area - in the true civil liberties area - where state governments are taking steps to muzzle any criticism.

I have presented just an overview of some of the problems we face as a society. We are all citizens. We do not want to be criticised as a society for the injustices and inequality that are so apparent. The true measure of the worth of our society, in my view, is how we protect those who are most disadvantaged. Measures that we, as a society, have allowed over recent times leave much to be desired. We all have a responsibility to make our voices heard.


[1] Mabo v Queensland (No 2) (1992) 175 CLR 1

[2] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

[3] Wik Peoples v State of Queensland (1996) 187 CLR 1

[4] Rawson v Deputy Secretary (Director of Schools) & Ors [1999] VSC 494 (9 December 1999)

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