MS PATTEN (Northern Metropolitan) (16:20:53): I rise to also speak to the Justice Legislation Amendment (Police and Other Matters) Bill 2019. As has been stated by many of the other previous speakers, this is an omnibus bill. It covers a wide range of legislation and makes a wide range of amendments. In its fragmentation it does some good but it also does some bad, and I would hope to repair some of that by amendment and also repair that by supporting some of the amendments that have been circulated earlier. I will endeavour to move through some of the key features of the bill, but before I do, and considering that my amendments were circulated earlier and then taken back, I would ask that before I start speaking to the bill and talking about my amendments, could we just circulate the amendments again.
Fiona Patten’s Reason Party amendments circulated by Ms PATTEN pursuant to standing orders.
Ms PATTEN: My first amendment actually goes to the first significant part of the bill, which is part 2. This part introduces new criminal offences and sanctions for threatening harm to police officers, protective services officers and custody officers. My amendments would actually just delete that whole part as I do not believe it is necessary save for clause 5, which is a statute law revision of a typographical error. I would say that these new offences should not be created. They are unnecessary. They are a law on a law, they are a crime on a crime. They are a crime that is already a crime. The proposed offences capture conduct that is criminal. I have not heard any evidence from the government or from any of the organisations who have written to me about the bill. I can tell you now, I do not think I have had a single letter from anyone writing to me saying, ‘This is a great bill, please support it’. No one has sent me that correspondence. There may obviously be people in the community that do support it, but every piece of correspondence that I have seen has suggested that this is bad legislation. There is no evidence that the existing sentencing practices for offences of this type are failing to meet community standards. I think of particular concern—and it is not just with me, it is with other people, other members here—is the proposed offence of intimidation of a law enforcement officer, which completely removes the intention or the mens rea, which is a significant departure from our charter. The formulation of this offence is so nebulous that we could see a person charged in circumstances where the victim was not placed in a state of apprehension or fear and the accused did not even intend to place the victim in a state of apprehension and fear, so the victim was not afraid and the perpetrator did not intend to make them afraid. This is the type of legislation that is clearly going to be misused. I would hazard a guess that there are probably six postcodes where this will be most used. It is in those six postcodes where we have the most marginalised and vulnerable young people, where we have the highest levels of youth unemployment, where we have the highest levels of disadvantage, where we have very vulnerable young people who will be approached and this law used against them. I can see this. Looking at the young people who are in the criminal justice system, I can see them having this law used against them numerous times. I think this is bad, unnecessary law. It does not achieve its purpose and it should not grace our statute books. This is another situation where the experts are telling us this is bad law. The experts in law, the experts in child protection, the experts in all aspects of our community are telling us this is bad law, but somehow we, the politicians, apparently know better. Probably the only paper that I have seen supporting this would be the Herald Sun, and yet again this does seem like a Herald Sun amendment. The Jesuits, Liberty Victoria, the Law Institute of Victoria, Anglicare Victoria, Youthlaw, Fitzroy Legal Service and numerous other organisations have said this is very bad law and will affect the most vulnerable in our society, will not reduce crime, will not make the world a safer place, will not make Victoria a safer place, but we are still going ahead with this. My amendments seek to remove that part entirely. Part 3 of the bill introduces new thresholds and sanctions for commercial drug trafficking at the behest of criminal organisations, and it amends some of the threshold quantities for these illicit drugs. That’s right! How do we stop the drug industry? We make more laws against it, because that has worked so well. We constantly hear, and I believe I have heard our Premier say, ‘We can’t keep arresting our way out of this’. But as a former Prime Minister, Mr Abbott, said, ‘We’ll continue trying’. This is a war against people; this is not a war against drugs. I note that this is about large quantities, this is about trafficking. But I also note that, as Mr Limbrick said, when you look at the cannabis plantations that are grown in hothouses around Victoria the persons looking after those hothouses for those possible crime organisations are international students, young people. It will be those people who will be facing life in prison for growing cannabis. Life in prison for growing cannabis—a product that is legal in Canada, a product that is legal in eight or nine jurisdictions in the US, a product that is becoming legalised throughout Europe, a product that we are looking at decriminalising in states around Australia, a product that I hope we will legalise in Victoria. If you want to keep criminals out of the drug industry, that is how you do it: you take the drug away from them. You make it legal, you regulate it, you look after it and you control it. I had some constituents write to me concerned about how this will affect medicinal cannabis. While this is not directed at medicinal cannabis, I have similar concerns for those compassionate people who are growing cannabis to help very sick people. They may be growing it in a quantity that would put them at risk here. Of course these are people who are compassionate and I would not say that they are organised criminals. However, the definition of organised criminal is more than two people who are plotting and planning to commit a crime. So a husband and wife who are growing cannabis to help sick children in Victoria may actually be organised criminals, given the broad nature of the definition. I take no issue with the second-hand dealing provisions in this bill. I am actually very pleased that on the eve of International Women’s Day part 5 of the bill introducing new measures to protect victims of sexual abuse within Victoria Police. I was on a stage with the human rights commissioner, Kristen Hilton, who was outlining the remarkable work she has been doing with the police to work out ways to make the police force more equitable and to see more women in the police force. I commend the government for introducing this legislation and I commend Victoria Police for really working towards making their workplace an equitable workplace that is free from violence and free from harassment. I will skip over part 6. I do have concerns in relation to part 7, which affects certain aspects of the sex offender register. As I have stated previously, empirical research consistently demonstrates that public sex offender registration has neither resulted in enhanced community safety nor led to a reduction in recidivism. In fact it is now patently clear that such initiatives exacerbates factors associated with the risk of reoffending and leave communities more vulnerable to sexual, domestic and other violence. That is the empirical data. These registers can have other unintended consequences, including creating community panic and vigilante attacks. I appreciate that Mr Grimley has introduced amendments to this, and I appreciate that this is a passionate cause that Mr Grimley and Ms Maxwell took to the election under the banner of Derryn Hinch’s Justice Party, but I see the amendments that I read today as nothing more than an attempt by the back door to publicly release information on the register. I am greatly concerned about this. I would also stress that this cuts directly against the advice of Victoria Police which was provided by the minister’s office. Victoria Police said that this is not a good idea; this register should remain within the remit of police. I have proposed a slight amendment to clause 49. I think my amendment removes the ambiguity in the drafting to ensure that disclosure is permitted for only law enforcement and judicial purposes. I propose to clarify in committee that, if supported, this definition will include police communications with foreign police services, as is the intent of the government’s amendments. I accept that we do need to be able to share that information at that police level. It is that sharing of information—that is, the police having the opportunity to use that information both nationally and internationally—that will make us safer and that is what the evidence empirically and unequivocally shows us. I go to part 8 of the bill, which creates a new ability for the taking of DNA profile samples to be authorised by senior police rather than by a court order. I concur with Mr Limbrick. DNA is a deeply personal piece of property. It should not be considered the same as fingerprints, which in some ways is what this bill is likening it to, saying, ‘Well, you don’t need a court order to get fingerprints; why should you need a court order to get DNA?’. I am simplifying that, but I have great concerns about that. As many have said, the technological advances in DNA are astounding. While that creates some confidence that the samples will be better used to solve crimes, it also brings fear about how that DNA can be misused or unintentionally used to wrongly prosecute people. However, my principal concern with this section is that it is being proposed to extend it to children. We are now saying that we can take children’s DNA without any judicial oversight, none whatsoever. Just in looking at this, I have met with the minister. Again the organisations that are against this are almost too numerous to mention; I am yet to find an organisation in support of this that has contacted me. In fact I contacted the Children’s Court to look at the current statistics in relation to DNA applications. What is evident is that there is actually a downward trend in applications of this type and they have been diminishing year on year. DNA applications for children of all ages and for all offence types account for 1 per cent of cases finalised in the Children’s Court—that is, 407 out of 40 477 cases that were finalised in the Children’s Court in 2016–17. When you adjust that for age of over 15 and matter type to DNA sample offences only and the percentage of court hearings that are not case-finalising hearing types—mentions, adjournments, bail applications et cetera—we estimate that DNA applications subject to this reform account for significantly less than 0.1 per cent of the total Children’s Court matters. We have heard from the government that this reform will reduce the administrative burden on police and the courts on obtaining DNA samples. We have heard that this will help streamline the system. Less than 0.1 per cent of cases in the Children’s Court will be affected by this. I do not think that this will have any effect on the workload of the courts. It is not statistically significant and it offends the Charter of Human Rights and Responsibilities. It offends me that we think that a 15-year-old child when approached by a police officer—albeit with an independent person there—will not feel intimidated and will not consent. If they do not consent, they have to have there an independent person—not a guardian; hopefully a guardian but if the guardian is not available, then just a person—who will ensure that a senior police officer has stated that this young person’s DNA should be taken. I appreciate that we are talking about extremely serious crimes and I appreciate that we want to solve those crimes. I appreciate that we want to actually stop these kids from committing these crimes so that hopefully we can bring them onto a path of rehabilitation. However, to do that at the loss of their human rights I think is absolutely wrong. Let us not forget section 17(2) of the Charter of Human Rights and Responsibilities Act 2006, regarding the protection of families and children. It states: Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Judicial oversight on taking a child’s DNA is the minimum we can do to protect the best interests of a child. We should be doing this, and I am so disappointed and so dismayed that this bill is ignoring that and is not putting the child’s best interests in there. To say that this makes it easier for police—’I know it is not in the child’s best interest but this will make it easier for police to make convictions’—it is such a small percentage. Just enabling us to have judicial oversight in this area makes us civilised. It makes a mockery of the charter of human rights for us to ignore it in this circumstance, when we ignore it for children. My amendments to this part remove this and bring back the rights of the child that are afforded by judicial oversight. The other note that the minister spoke to me about was saying that, ‘It’s a very high bar’. That is the problem: the police are finding that to get forensic evidence, DNA evidence, is a very, very high bar. Yet the high bar is ‘reasonable suspicion’. That is to the magistrate, that is to a court that the police have reasonable suspicion that this person committed a very serious offence. I do not consider that a high bar. I think my amendment brings back an appropriate balance between appropriate policing and the rights of the child. I am looking forward to the committee process for this and I will have a number of questions, but I do hope that I can get some support for, at the very least, protecting children and putting in judicial oversight of taking DNA from children. If this bill is not amended, then I cannot see any way that I could support it.
