ANNUAL REPORT OF THE VICE PRESIDENT, TERRY O’GORMAN ANNUAL GENERAL MEETING THURSDAY 15 JUNE 2000
A number of important issues were addressed by the Council in the last 12 months. They are outlined below.
Paedophile Register
In July 1999 the Civil Liberties Council expressed support for moves by Attorney-General Matt Foley to have decisions as to publication of the current addresses of released child sex offenders taken out of the political arena.
The Council argued that it was important, however, that if the Parole Board was to be given the power to decide whether current residential details of released child sex offenders would be made known, there should be a power of appeal given to the Supreme Court in respect of aggrieved individuals who could establish that the release of such details had little public benefit but could cause considerable distress and risk of vigilantism particularly to the released offender's family. Unfortunately this proposal was not taken up.
A related problem in this area was reflected in the joint submission made to the Attorney-General by the Victims of Crime Association and the QCCL on 27 February 2000 requesting the Attorney-General to extend the law of stalking to vigilante groups in respect of the practice of leafleting of streets and whole neighbourhoods whereby the addresses of released sex offenders and their families were publicised. In a rare move victims and civil libertarians united in urging the Attorney-General to outlaw such leafleting activities which cause enormous distress to the innocent family members of a released sex offender. The submission to the Attorney-General pointed out that legislative changes which permitted judges to direct certain sexual offenders to report their whereabouts to police on release was, in conjunction with other measures, more than sufficient to deal with any legitimate concerns in relation to released sexual offenders.
The Attorney-General has circulated various stakeholders seeking their views in relation to this proposal.
Criminal Code – Women’s Task Force
In February this year the Women’s Task Force on the Queensland Criminal Code reported to the Attorney-General and more recently the Attorney-General has indicated that certain of the recommendations are currently being examined.
The most important and quite worrying proposal apparently under consideration is the future role of committal proceedings in Queensland.
The Queensland Law Reform Commission is due to release a report in the next 1 - 2 months on its reference dealing with Children as Witnesses. That report is awaited with considerable interest.
In February this year the Council delivered a very lengthy submission to the Attorney-General arguing by reference to numerous case examples why fully argued committal proceedings should be retained. The examples drawn from actual committals held in the Magistrates Court showed that if adequate cross-examination of sexual abuse allegation complainants and other witnesses in child and adult could not occur, miscarriages of justice would surely follow. The significance of this report is that it concentrated on case examples from actual committal proceedings held in the Brisbane Magistrates Court. Those case examples show unequivocally that committal proceedings play a vital role in bringing out into the open evidence which is suppressed by police and others in the highly emotive area of prosecution of child and adult sex offenders.
Phone Tapping
A submission was delivered to the Senate Legal and Constitutional Committee dealing with an extension of telephone tapping powers so as to allow a Court to issue a telephone tapping warrant against a person rather than against a particular landline or mobile. The supposed reason for this amendment was justified by the law enforcement lobby on the basis that with the advanced technology of mobiles a telephone tapping warrant against a particular mobile telephone number is inadequate because mobile phones/sim cards are readily disposable and interchangeable.
The submission argued that the current level of monitoring of both the issue of telephone tap warrants federally and the actual implementation of a particular warrant was inadequate. We argued that the Queensland concept of a Public Interest Monitor which was introduced by the then Queensland Conservative Government in 1997 should be applied to federal telephone taps in order to introduce a greater degree of accountability and transparency not only to the warrant issuing process but also to oversee the amount of criminal intelligence versus privacy intrusive material that was captured during the course of a particular telephone tap warrant being in place.
The Senate Legal and Constitutional Committee's report is expected in the next 1 - 2 months in respect of this issue.
Criminal Justice Commission
There has not been as much controversy in relation to the CJC over the last 12 months as has tended to be the case in recent years.
This is probably due to the fact that political attacks on the CJC particularly by the coalition in Queensland have diminished somewhat. It may also be a reflection of the fact that the CJC is now 10 years old and probably has become an accepted part of the criminal justice landscape in Queensland.
The 3 yearly review of the CJC which is statutorily required by its enabling Act has to be undertaken in July and August of this year. A submission will be made to that Review.
One important part of this submission will be the role of the Parliamentary Commissioner overseeing the CJC. It will be remembered that the office of the Parliamentary Commissioner overseeing the CJC was established following the collapse of the Connolly/Ryan Inquiry into the CJC in 1996/97.
The first Parliamentary Commissioner (Julie Dick S.C.) has occupied that position for a little over 12 months. There have been some attacks on her office particularly by the Courier Mail in recent times, apparently because some Courier Mail journalists were required to give evidence in private in respect of a matter which the Parliamentary Commissioner was obliged under its statute to investigate.
In May 2000 I was invited to address the West Australian Parliamentary Committee supervising the Anti-corruption Commission in that state and my address concentrated on the need for an office such as Julie Dick's to supervise the activities of the ACC in West Australia. The ACC has been the subject of a similar type and level of controversy which occurred in respect of the CJC in the first 5 years or so of its operation.
The QCCL strongly supports the continued existence of Julie Dick's office as, before her office was established, any complaints against the CJC were not effectively and independently investigated. Complaints were effectively investigated by the CJC's supervising Parliamentary Committee, the PCJC. It became obvious that the PCJC did not have the time, resources or legal expertise to deal with complaints against the CJC.
While Julie Dick's office and enabling statute is probably in need of better resources and slightly revised enabling powers, it is quite important that the external oversight/accountability that her office provides in respect of the CJC be maintained.
It is interesting to observe that the Police Integrity Commission (PIC) established in the last couple of years in New South Wales following the completion of the Wood Royal Commission has an oversight model very similar to the Parliamentary Commissioner's model effectively operating and with very little or no controversy.
One of the main accountability problems in respect of the National Crime Authority which was established in the mid 1980's has been the lack of any external oversight agency. Indeed the Australian Law Reform Commission approximately 3 years ago recommended that the NCA be subject to a CJC style external oversight. Despite the ALRC's closely argued report convincingly making the case for such an external oversight body, bureaucratic opposition to the proposal including from the NCA has resulted in that recommendation not being implemented to date.
Sentence - Mandatory
The Queensland and Australian Councils for Civil Liberties participated in the significant debate which has occurred in the last number of months dealing with mandatory sentencing.
We supported Australian Green's Senator Bob Brown's proposal that the Federal Government override the mandatory sentencing laws in the Northern Territory, particularly as they affect children.
Currently those laws are supposedly subject to amelioration of their worst effects by the Federal Government providing a significant sum of money to the Northern Territory to allow for greater diversion and allied procedures to be put in place especially in relation to children.
Nevertheless the mandatory sentencing regimes for both children and adults that are in place in both the Northern Territory and West Australia are still a blight on the criminal justice systems of both of those places. A number of ex-High Court of Australia Chief Justices have publicly criticised the effects of mandatory sentencing particularly as they detract from the ability of sentencing judges to tailor a particular sentence to the individual facts of each case.
Unfortunately, mandatory sentencing reflects the increasing vigour with which State and Territory based politicians use law and order as a political plaything.
Few of the proponents of mandatory sentencing will publicly recognise or admit that in all States and Territories the Attorney-General and Directors of Public Prosecutions have a right to take perceived lenient sentences to the Court of Appeal. In fact, this is regularly occurring throughout the country. The push against mandatory sentencing in the Northern Territory and in West Australia should be maintained and strenuous efforts should be made to ensure that there is no further spread of that highly undesirable phenomenon in other States and Territories.
A related aspect of the mandatory sentencing laws is the desirability of increasing the age at which a person is no longer charged and dealt with under juvenile justice law from 17 years to 18 years. It is interesting to observe that in April this year the Federal Government called on Queensland to scrap its laws which treat 17 year olds as adults before the Court. A similar call was made in respect of Victoria.
Federal Attorney-General Daryl Williams indicated that he would write to the Queensland Attorney-General seeking that Queensland raise its juvenile age to 18. This issue is apparently under consideration by the Queensland Government. Comments by Attorney-General Foley to his Federal counterparts calls to raise the juvenile age to 18 were not particularly promising.
Strip-searching
The Council continued to publicly criticise the excessive use of strip-searching in watchhouses, particularly of females.
I addressed the Second Australasian Conference of Women and Policing in Brisbane in July 1999 called for the practise of strip-searching of women in watchhouses to be the subject of urgent review.
The Criminal Justice Commission has conducted public hearings and received submissions on this issue and their report is expected in the near future.
Police Database – Privacy Issues
In March-May 2000 the Criminal Justice Commission conducted public hearings into allegations that sensitive material on police data bases often provided by Queensland citizens under statutory compulsion were being leaked to private inquiry agents and others for commercial gain.
A submission was made to that Inquiry and Ian Dearden attended to give evidence at the CJC public hearings in that regard.
The report of the CJC on that issue is apparently imminent.
Queensland Police
The 1999 Queensland Defendants Survey in relation to police practice and behaviour conducted by the CJC shows ongoing improvements in relation to police treatment of suspects.
In comparison to the first defendants survey in 1996, while 50% of respondents continued to indicate they had concerns about police treatment, more respondents to the 1999 survey had favourable comments to make about how they were treated by police and fewer respondents alleged that they had been the subject of police assault, rudeness or verbal abuse.
While the fact that 50% of respondents continue to indicate that they had concerns about police treatment, there are some signs of progress in relation to the level of complaints in respect of police treatment of defendants.
Mental Health
There has been considerable publicity in recent weeks concerning the treatment of and the conditions under which people suffering mental health problems who are living in the community are being treated.
A recent Editorial Opinion piece in the Courier Mail was critical of the QCCL for not involving itself in mental health issues. This is a valid criticism.
In our defence, however, it must be recognised that there is a limit in respect of what the QCCL is able to achieve having regard to the fact that it is a voluntary organisation whose active members are otherwise mostly fully committed in respect of their employment.
Nevertheless, it is hoped that the Council can liaise with Queensland Advocacy and the Mental Health Association in respect of their recent call for an Inquiry into community based conditions for those suffering mental health problems or related disabilities, following deinstitutionalisation moves in the 70's and 80's.
DNA
The issue of a national DNA databank through the Federal Government's proposed CRIMTRAC and the related aspect of mass DNA community testing has been a particularly important issue recently.
While the law enforcement lobby continues to sing the praises of DNA, unfortunately little attention has been given to the dangers of DNA evidence both as to the comparative ease with which DNA samples can be planted and the miscarriages of justice which can flow from DNA evidence being carelessly or fraudulently handled from point of collection through to final laboratory analysis.
It is of concern that the simplistic line that DNA is infallible has been so uncritically publicly accepted. A similar unquestioning acceptance of scientific evidence in criminal cases lead to the acknowledged miscarriage of justice in the Lindy Chamberlain case in the early 1980's.
It used to be convincingly argued by police that the chain of continuity between collection and analysis in relation to drug busts was beyond reproach. A number of instances of allegations of police syphoning off drug samples for later planting or giving to informers has made the reliability of continuity of drug exhibits less readily accepted than used to be the case.
It is my prediction that the storage checks and balances in relation to DNA which are not being properly addressed in the current DNA debate will only be properly instituted after a miscarriage of justice has been demonstrated to have occurred.
Particularly in relation to mass testing, following the Wee Waa controversy The Australian in an editorial dated 1 April 2000 headed "Role of DNA Tests needs investigation" commented:
The police request that all adult men in the NSW country town submit to DNA testing is worrying...... (Politicians) are overselling DNA testing as a tool of criminal investigation. They are giving an uncritical account of its benefits in the emotive context of an appalling crime..... the proposed mass screening raises squarely a civil liberties question namely why should law-abiding individuals submit to this invasive procedure...... there is danger in investigators, juries or the public coming to place too much reliance on the result of a DNA test. The integrity of the procedure for taking and handling samples must be assured. This will require proper training, transparent procedures and a degree of independent scrutiny.....
There are even suggestions that the numerous pin pricks of blood collected each year from the heel of each new born baby in New South Wales may eventually be accessed for the purpose of DNA testing in the context of criminal investigations. This raises the very serious issue of samples collected for one purpose (testing for genetic disease at birth) being used for a completely different purpose. These and many other vexed issues in relation to DNA are not being properly addressed because of what almost amounts to police propaganda as to the socalled unchallengeable reliability of DNA samples.
Immigration Detention Centres
The issue of the Federal Government's policy on immigration particularly in relation to asylum seekers and conditions in the 6 privately run immigration detention centres is currently the subject of a Federal Cabinet appointed Task Force Inquiry.
A call has been made by the ACCL that the terms of reference of the Task Force need to be publicised and the Inquiry needs to be made in conjunction with the Commonwealth Ombudsman.
The Commonwealth Ombudsman's last Annual Report was critical of some problems in a number of immigration detention centres. In the last 18 months most of the immigration detention centres have been handed over to private contractors to run.
Two recent mass breakouts from rural immigration detention centres raises a number of important questions as to management practices and detainee conditions.
It is very easy to regard the conditions which prevail in immigration detention centres as being "out of sight out of mind", particularly having regard to the fact that those kept in such centres are in one way or another illegal immigrants.
Just as it has been said that the measure of a civilised society is the manner in which society's prisoners are treated, it can equally be stated that the measure of the extent to which human rights currently exist in practice in Australia can be measured against the way in which those involuntarily held in immigration detention centres are treated.
The outcome of the Task Force Inquiry and the projected remodelling of immigration detention centres into prison-like environments are going to be important issues over the next number of months.
Witness Anonymity
Legislation is currently before the Queensland Parliament permitting police officers and civilian operatives engaged in covert operations to give their evidence in Court by way of a pseudonym.
This measure in conjunction with another recent law change enabling undercover operatives (both police and civilian) to break the law are worrying developments.
It is of particular concern that not only should police be given power to break the law in circumstances where the supervision of such law breaking activities is left to a Committee, not a Court, but it is also of concern that once having broken the law police AND civilian operatives are then able to give their evidence by way of pseudonym.
This is likely to have the effect of making it difficult to put before a jury issues going to the credibility and past dubious practices of both police and civilian undercover operatives because it will be extremely difficult to obtain access to previous transcripts and other police records to demonstrate that a particular operative in a given jury case cannot be relied upon.
The witness anonymity legislation is yet to be passed by the Queensland Parliament and it is hoped that the concerns that we have expressed to the Attorney-General will be taken up during the detailed debate which has yet to be held on the Bill.
TERRY O’GORMAN, VICE PRESIDENT
Brisbane, 15 June 2000