18 Oct 2016
The Hon. A.L. McLACHLAN ( 17:49 ): I rise to speak to the Summary Offences (Declared Public Precincts) Amendment Bill 2016. The Liberal Party is supporting the second reading of the bill. The Liberal Party at this stage does not anticipate that it will seek any amendments to the bill. I have a number of questions in respect to the operation of the bill and I ask that they be responded to by the minister in his summing-up of the second reading debate. I alert the government that I may have more questions during the committee stage, after reflecting on the second reading debate.
The bill proposes to add a new part 14B to the Summary Offences Act 1953. The Liberal Party is supportive of any sensible and warranted measures that ensure that our citizens remain safe while at the same time not unreasonably restricting the liberties of our citizens. This is why the Liberal Party is supporting the second reading. However, when the government is seeking to strip its citizens of their rights and, in this case, restrict their movements and subject them to searches, the Liberal opposition needs assurances that the realities on the street justify the legislation and that there will be monitoring of the effectiveness of the provisions going forward.
The parliament has been given little justification to date that these laws are needed. Little data has been provided to underpin the government’s arguments—just anecdotes. There are no compulsory reporting requirements to allow for the effectiveness of these laws to be assessed going forward. This is of concern. We have been advised in a briefing that the police requested the enactment of these laws. The conception of this bill has all the hallmarks of the police once again looking for more power at the expense of our people’s liberty and of a government willing to acquiesce so that it can claim another notch on its law and order totem.
Laws such as these should be proposed after careful consideration of the crime on our streets. Then, once enacted, their effectiveness should be measured against agreed key performance indicators. We will have to await a Liberal government for this type of informed public policy and legislative process. I send out a challenge to the police executive: even without legislated reporting requirements in respect of these specific measures, if the bill is enacted, hold yourself accountable, measure the impact and have it independently verified.
I renew my own personal calls that this state have an independent body to conduct analysis and publish crime data. I acknowledge the work in this regard of the Queensland Taskforce on Organised Crime Legislation. While it is focused on organised crime, the commentary of the task force is equally applicable. The task force recommended to the Queensland government that it should establish an independent statistical research body to collect and publish regular analysis of Queensland crime data.
Interestingly, in the report, the task force commented that how a community feels—in particular, whether it is members feel safe from a crime—does not necessarily correlate with the actual crime rate statistics. Rather, public perceptions about things like community safety can be influenced by a number of sometimes nebulous factors—the daily lives of individual citizens, their own personal encounters with crime and what they hear from politicians and media sources. They went on to say that the collection, presentation and scrutiny of crime statistics is crucial in providing government, law enforcement, policy bodies and the public with a comprehensive picture of crime in our state. Interestingly, they also acknowledge the influence of politicians’ comments on public opinion.
I now return to the provisions of the bill before us. This bill provides the Attorney-General with the power to make a declaration that a public precinct is a declared precinct where there is a reasonable likelihood of conduct occurring in the area that would pose a risk to public health and safety. Once a particular area is declared, the police are provided with additional powers to interfere with the lives of our citizens if they are within the area or attempting to enter the area.
Such a declaration can be made either on the Attorney-General’s own motion or on the recommendation of the Commissioner of Police. Such a declaration would be gazetted and would operate for a period specified in the declaration. This declaration must be no longer than 12 hours within a 24-hour period. It can be on a recurring basis or on an as needs basis. The declaration, once gazetted, will then be communicated on a web page. The government has provided Hindley Street on Friday and Saturday nights or Gouger Street during Chinese New Year as examples of when such a declaration might be contemplated.
The Attorney-General is being invested with significant power. There appear to be no substantial restrictions on the unreasonable exercise of this power other than public examination or condemnation. The Attorney-General must be satisfied that there is a reasonable likelihood of conduct in the area posing a risk to public safety and a declaration is reasonable, having regard to the risk. I suspect the role of the independent media will become critical in assessing the reasonableness of the declarations—the same media that the government continually seeks to keep away from its darkest secrets and refuses to protect by recently opposing shield laws and other legislation that facilitates transparency.
I question what the required threshold will be to allow the Attorney-General to make a finding that there is a reasonable likelihood of conduct occurring in an area. Will it be sufficient that the Attorney-General reads about one act that has occurred in a newspaper and then makes a declaration? Does it have to be a series of incidents? Will the Attorney make the grounds for his decision public; in other words, give reasons to facilitate a challenge of the decision? Given the implications of a decision to declare an area, will the Attorney-General hold himself accountable, as our independent courts do, and supply reasons for the decisions to the public?
When the police make a recommendation, will there be an evidence brief provided to the Attorney-General? Will that be made public and accompany the declaration? Will the recommendation be provided to members of this chamber, or will we have to pursue a long FOI process? This government has an addiction to secrecy. I question whether the process of making a declaration will be transparent and communicated. As I have indicated, in my view, the transparency is warranted given the corresponding restriction on people’s liberty. My concern is that we are again moving to a regime with administrative decision-making based on criminal intelligence or, in this instance, simply the vibe that a street is unsafe.
I query how the declarations will be challenged. Will someone who wishes to defend charges resulting from actions in an area have an opportunity to seek to challenge the validity of the declaration? I ask the minister to set out his understanding of the manner in which the decisions made by the Attorney can be subject to scrutiny by our courts. Such an expansive power in the hands of the Attorney-General has inherent potential for abuse.
What is to stop the Attorney-General from declaring an area around someone’s home? What is to stop the Attorney-General from declaring areas of the Parklands as a strategy to disrupt gatherings of certain communities as well as remove their children? Will the provisions of the bill apply to someone driving through the street—for example, Hindley Street? Can vehicles be stopped and searched? I ask the minister to respond to these important questions.
Following the declaration being made, the police will have enhanced powers in relation to the declared precinct. They will have the power to remove children from the precinct using the powers under the Children’s Protection Act 1993, if they are in serious danger. This includes where they are behaving in an offensive or disorderly manner. The police also have the power to order a person or a group to leave the precinct if the officer believes or apprehends on reasonable grounds that an offence that may have posed a risk to public order and safety has been committed or is about to be committed, or the presence of a person or group poses a risk to public order and safety.
If a person who has been ordered to leave the precinct remains, re-enters or attempts to re-enter the declared precinct during the declared period, they can be charged with an offence. In essence, the bill turns a declared area into a type of uber-licensed venue with the police acting as security guards. A declaration also empowers the police to bar a person from entering or remaining within the precinct if the officer believes or apprehends on reasonable grounds that an offence poses risk to public order and safety, has been or is about to be committed, or the person behaves in an offensive or disorderly manner.
I note that the police officer may even bar the person from entering or remaining within any other declared precinct specified in the order. For example, if there are two declared precincts on the same evening, a barring order could prohibit the person from entering both of those precincts. How will the police in the neighbouring declared areas know that an individual has been barred? Will CC television and facial recognition be viewed to enforce this provision? I ask the minister to respond to these questions.
The police will have the power to serve an expiation notice on a person behaving in an offensive or disorderly manner within the declared public precinct. The bill also creates an offence to carry an offensive weapon or dangerous article in a declared public precinct without lawful excuse.
Clause 66R enables the police to carry out metal detector searches for the purpose of detecting the commission of an offence. I ask the minister to set out the extent to which the words in clause 66R, for the purposes of detecting the commission of an offence, restrict the use of metal detectors by the police. Can a metal detector be positioned at the entrance to a declared area and can any or all people seeking entry be searched? Clause 66 provides for general drug detection searches of any person who is in the declared public precinct. I ask whether there are any restrictions on the exercise of this power.
The Attorney-General will communicate a declaration via a web page. This is after an area is gazetted. I ask whether it is anticipated that there will be other attempts to inform the public that an area is declared. For example, will notices be erected in the areas informing the public of enhanced police powers? To fail to communicate the effect of the declaration appropriately, in my view, would potentially undermine the public confidence in these provisions.
The requirement to notify the public in the bill seems somewhat light. I find it difficult to envisage our youth seeking out the Government Gazette. It appears on first blush that the Attorney-General expects all of us, before going out at night, to check whether we intend to enter a declared precinct. If so, we have truly entered the era of the police state.
Whilst the opposition is supportive of making our community safer, I highlight that a number of legislative mechanisms are already in operation that deal with public order and safety. I will list just a few that spring to mind: section 7 of the Summary Offences Act makes it an offence to behave in a disorderly or offensive manner in a public place (this includes licensed premises). Section 21C of the Summary Offences Act prohibits any person from carrying an offensive weapon or an article of disguise without lawful excuse.
Section 21C(3) prohibits any person from carrying an offensive weapon or dangerous article at night while in or apparently attempting to enter or leave licensed premises or a car park area of a licensed premises. Section 117A of the Liquor Licensing Act makes it an offence to behave in an offensive or disorderly manner in the vicinity of licensed premises. Furthermore, it appears that these powers are actually effective.
SAPOL’s annual report for 2014-15 states that, in that period, public order offences had decreased by 13.7 per cent, and, similarly, disorderly conduct offences had decreased by 12.1 per cent. Given these recorded decreases, I ask the minister to provide the chamber with the data that the police use to justify the request for the proposed laws that are before us for consideration. From their own account, they seem to be doing very well. Their own assertions undermine the government’s case for this legislation.
There have been a number of significant submissions in respect of this bill. In coming to its decision to support the second reading, the Liberal Party has had particular regard to the submission of the Australian Hotels Association. There are other submissions that give rise to particular concerns about the impact of the legislation. I ask the minister to directly address their concerns in his summing up.
While the submissions were raised in debate in the other place, I seek to have their issues more directly addressed in this chamber. It is therefore my intention to read them into Hansard. There are three: one is from the Law Society, one from the Youth Affairs Council and one from the Aboriginal Legal Rights Movement.
I refer to a letter from the Law Society, dated 22 April 2016, to the Hon. John Rau, signed by the president, David Caruso. Paragraph 1 is a thank you for receiving the drafts, and I will not read it into Hansard, so I will proceed from paragraph two:
2. The comments expressed in this subm ission have been informed by our Children and the Law Committee and the Aboriginal Issues Committee.
3. T he S ociety has also had the benefit of considering submissions made by Aboriginal Legal Rights Movement (ALRM) and the Youth Affairs Cou ncil of South Australia (YACSA) and broadly supports the views expressed by both organisations.
4. The S ocie ty makes the following comments…
5. The Society submits that the B ill is likely to have a disproportionate impact on both Aboriginal people and young people.
6. The terms of proposed s 66L of the Summary Offences Act 1953 are reassuring in relation to protection of the common law right of free association of persons.
7. However, the S ociety is concerned that this will not extend to the protection of Aboriginal people who are often functionally illiterate, transient and present in public places. The S ociety will elaborate further in comments relating to the proposed s s 66O and 66Q , below.
8. In addition, we are concerned that the Bill creates a real risk that young people will be restricted in their rights to access public spaces and to congregate and socialise in peer groups.
9. The conflictual nature of youth and police relationships is well documented in juvenile justice research.
10. It is the experience of members acting for child clients that children’s poor experiences with police earlier in life (their own or that of their parents) very often influences future interactions and attitudes towards police.
11. Child clients also report police acting with hostility and mistrust towards them. One recent example from one of our members is of a girl aged 17 years who was stopped in the city by police. Police queried why she was in possession of a number of fiction books, some of which were new. The girl reported that Police did not believe her story that they had been given to her by a local youth service.
12. The proposed amendments provide the Police with enhanced powers to stop and question young people for the mere fact of being in a declared public precinct.
13. When this is viewed in the context of the often difficult relationships between Police and young people, the S ociety submits that there is potential for an undue escalation of summary offending by young people (such as use of offensive language and assaults on police). This may be amplified when young people with undeveloped communication and problem solving skills assert their position in the face of mutual antipathy and distrust.
14. The Society highlights the comments made by YACSA in respect to the negative regard in which young people are held by the broader community public when accessing public spaces for further context to our concerns.
15. The Society supports the comments made by A L RM in its submission that the apparent safeguards in the proposed s 66M(4) are inadequate.
16. The society agrees with ALRM that ‘special circumstances’ in which the Minister may extend a declaration of public precinct beyond 12 hours should be defined inclusively in the legislation, and that the Minister should be compelled to provide reasons when exercising that power.
17. The Society opposes the power to request that persons leave a declared public precinct in proposed s 66N(1)(b) as it is currently drafted.
18. This power appears to relate to the specifics of a person as opposed to the situation they find themselves in in a public place.
19. The Society submits that there is a real risk of this power being open to abuse, and we endorse the comments made by ALRM as to the necessity of s 66N(1)(b) in addition to s 66N(1)(a).
20. The Society is concerned that young people in a declared public precinct, particularly those who are socialising in groups, will be disproportionately targeted by police and requested to leave for reasons referred to in the general comments section above.
21. Such young people may then be at greater risk of being charged with a criminal offence pursuant to proposed s 66O.
22. The Society shares ALRM’s concerns about the use of expiation notices in relation to public order offences.
23. We submit that legislating further expiation notice provisions (such as those in proposed s 66O(1)) will have a disproportionate impact on Aboriginal people who have high illiteracy levels by comparison with the general population and who are, therefore, more likely to ignore expiation notices.
24. The process of arrest and charge of suspects is in such case s of greater benefit to Aboriginal defendants, who might find themselves unintentionally trapped in offending patterns.
25. Proposed s 66Q provides a form of limitation of the liberty of the subject by instituting a barring regime within a declared public precinct.
26. As indicated above, regarding proposed s 66O, this regime has the potential to set Aboriginal people up for multiple breaches by relying on terms in a written document. Such documents may include complex directions involving a bar not only from the public precinct where the impugned behaviour or presence has occurred, but also from one or more other public precincts.
27. The Society is concerned about the effect of s 66Q(1)(3) on young people as potentially restricting their access to public transport , by reason of entering a declared public precinct from which they are banned.
28. Similarly, this proposed subsection may impact on young pe ople’s access to youth services given that the city is a services hub for many young people.
29. The Society is also aware that youth services, such as Multicultural Youth South Australia, provide outreach and street work in and around the vicinity of Hindley Street after hours on weekends. The Society is concerned that the proposed amendments would deter young people from seeking out these services, which is at odds with helping to keep children and young people safe.
30. The Society is concerned with the effect of s66R on young people who are experiencing homelessness or other forms of social disadvantage or marginalisation.
31. For many young people, being taken home by police is no safer than being permitted to remain in the declared public precinct where they can access services supports and their homeless peer group for support.
32. Young people in a state of primary homelessness tend to use the city as a safe place to stay awake and away from the deeply fractured environment of home rather than sleep rough. They then access specialist youth and homelessness support services upon opening in the morning; services such as Streetlink or Trace-A-Place.
33. Proposed s 66R would have a negative impact on this cohort of young people. In addition, many of these young people are declared to be independent by Centrelink and in receipt of the Unreasonable to Live At Home Allowance (UTLAH). UTLAH may be granted to young people aged 15 and over. In this instance a young person is their own legal guardian and are not required to have a ‘guardian’ present as suggested by proposed s 66R(1)(a).
34. If Police are to take children and young people removed from the declared public precinct home, we suggest that there must be accompanying support to the families of these young people.
35. Support is critical to assist families to begin to address the factors that led to their children and young people leaving in the first place. Simply taking a back home does nothing to address these reasons and ma y continue to place children in situations of (hidden) harm within the family home.
The other two submissions which I wish to read into Hansardare the ALRMand Youth Affairs Council which are referred to in the Law Society’s submission. The next submission is from Christopher Charles, a legal practitioner and Director of Legal Services, Aboriginal Legal Rights Movement, to the Attorney, dated 6 April 2016. I will skip the salutations. It states:
We note that the Bill refers to a new part 14b of the Summary Offences Act . The new division 1 s 66l is welcome. We are concerned however at the adequacy of the safeguards provided in s 66n subsection 4. In particular we note that under subsection 4 a public precinct may not be declared for more than 12 hours in any 24 hour period unless the Minister is satisfied that special circumstances exist in the particular case. We note that special circumstances are not defined in the Bill, and although it may be argued that special circumstances have been judicially defined in relation to numerous other sets of legislation, that does not mean that the powers of administer to create such draconian orders, should not be suitably circumscribed by Parliament. Accordingly ALRM recommends that special circumstances requiring an extension beyond 12 hours in a 24 hour period should be defined in the legislation. Similarly, it is submitted that, should occasion arise whereby the Minister felt required to extend a public precinct declaration beyond 12 hours in a 24 hour period, the Minister should be required, in making the declaration, to give statement of reasons to the public. That should be done via the Minister’s website pursuant to subsection 5.
We refer to proposed s 66N. Under s 66N(1)(b), a person may or group of persons may be ordered to leave the declared public precinct, upon the basis of the police’s reasonable belief that the presence of that person or group of persons in itself poses a risk to public safety, public scrutiny or public order.
This is very much an in personam power. It relates to the specifics of the person, not to the situation that they may find themselves in in a public place. There is a great potential for such a power to be abused, particularly when the entirely reasonable ground referred to in proposed s 66N(1)(a), has been made out. If (a) has been made out, what is necessary for (b)? It is submitted that subparagraph b should be removed from the Bill because there is a real risk that it could be used by the government of the day, or by the Commissioner, or by police to isolate, and heavily infringe upon the civil liberties of particular individuals, solely upon the basis of their identity.
Referring to s 66O, ALRM has a general disapproval of the use of expiation notices in relation to public order offences. This is well known to you from previous submissions in relation to the abuse of the Expiation of Offences Act , in relation to dry areas declaration.
ALRM is concerned that Aboriginal people who may not be literate or who may not be able to understand the expiation notice, could be subject to multiple expiations for disorderly behaviour or offensive language in a prescribed public precinct, without fully understanding the circumstances giving rise to the expiations.
At any event, if a person is behaving in a disorderly fashion , or using offensive language in a public place and if it is a prescri bed public precinct where police hold genuine fears for public safety, public security or public order, surely that is a reason why a rrests should take place rather than the provision of expiation notices. In that circumstance, ALRM raises the question why provision is being made for giving out exp iation notices under s 66O(1).
The final submission that I wish to read into Hansard is from the Youth Affairs Council and is titled ‘Submission to the Summary Offences (Declared Public Precincts) Amendment Bill 2016’. It is dated April 2016 and it states:
The Youth Affairs Council of South Australia (YACSA) is the peak body in South Australia representing the interests of young people, youth workers, organisations and networks throughout the non – government youth sector. Policy positions are independent and not aligned with any particular party or movement. YACSA’s aim is to encourage young people , and those working with them and for them , to achieve meaningful improvements in the quality of young people’s lives.
YACSA is pleased to have the opportunity to respond to the Summary Offences (Declared Public Precincts) Amendment Bill 2016. The amendments outlined in this B ill will provide police with many of the same powers that they have dealing with criminality and disorderly conduct in private spaces but will apply to public events and public spaces. YACSA is concerned that young people , who are already scrutinised, monitored and regulated in public spaces , may be disproportionately impacted upon by these changes.
YACSA recognises the importance of public space to young people and supports their right to free and unhindered access to public spaces regardless of their backgrounds, economic status and age . H owever, we remain concerned that young people’s right to lawfully use public space, as well as privately owned spaces such as suburban shopping complexes and the city centre , is under threat.
As such, YACSA has concerns that the operationalisation of this legislation by the South Australian P olice will have the potential to further impact upon the use of public space by young people in South Australia.
YACSA advocates for the fundamental right o f all young people to participate in and contribute to all aspects of community life, partic ularly decision making processes which impact upon them directly. Young people’s involvement in society is vital in ensuring the development of relevant , forward – thinking and representative policy , programs and services. YACSA believes that young people are the experts in their own lives , and it is young people to whom decision-makers should turn when considering solutions to the problems young people face.
Sadly, it is more often the case that young people are excluded from decisions that affect them . F or example, while young people are expect ed to assume many responsibilities in our society — including the responsibility of securing and maintaining employment — the same society can devalue their contribution and marginalise their role as stakeholders in civil, political, economic, social and cultural life , simply because of their age.
We live in a world where our perceptions are shaped by the media , which provides us with an ongoing , often negative , commentary that often serves to limit the roles available to young people. Young people are often portrayed as the victim, the child , the criminal, or the symbol of ‘ what is wrong with the youth of today ‘ . Young people are also often seen as ‘ adults in the making ‘, which suggests they are somehow are less capable, less in sightful , less intelligent and less valuable than adults. This gives rise to the notion that young people are unable to make proper decisions or contribute in a meani ngful way until they are older.
YACSA advocates strongly for young people to be viewed as important , contributing and valued members of their communities and as such, the opinions, knowledge, experience and participation of young people should always be sought and included.
The use of public space by young people is the subject of almost perpetual debate . W ith active citizenship and the use of public space being increasingly linked to consumption and financial participation, young people are being progressively excluded from public and commercial spaces and are subjected to increased surveillance, regulation and stigmatisation. Young people are often perceived and promoted ( particularly by the media and some business owners ) as pests or as a threat to the enjoyment of public space by others. The media attention surrounding young people congregating and skateboarding through Victoria Square ( shortly before the c ity s k a te p ark closure ) is a prime example of the often baseless hysteria inspired by young people enjoying a public space . In this case, local business owners reported ‘hoards’ of young people skateboarding through Victoria Square in the afternoons and on week ends allegedly serving to deter others from taking advantage of the space . H owever, apart from the opinions of local business owners there was no actual evidence offered to back up claims of the reported ‘hoards’ using the space or whether in fact the use of the space by young people was deterring the use of the space by others.
With this example in mind, YACSA contends that young people, ( while using public space ) are subjected to an increased amount of suspicion, regulation, restrictions and surveillance. Increased regulation for young people accessing public space is often couched in terms such as ” crime prevention ” or ” decreasing anti – social behaviour ” . But low crime and anti – social behaviour rates in juvenile populations aren’t easily reconciled with this heavy handed approach.
Th is disparity in regulation experienced by some councils, decision makers, police and other authorities often has young people complaining about unfair treatment particularly where they have not committed a crime or broken any laws. To many, it would seem that young people , on the most part are experiencing this treatment purely for being young .
YACSA and the Council for the Care of Children developed a joint report in response to the Citizens ‘ Jury on ‘H ow to ensure that we have a vibrant and safe Adelaide nigh tl ife ‘ in 2013. The basis of this report was the premise that young people have a right to access public space and to do so safely regardless of age or background . We received around 100 responses to a survey which underpin ned the report from young people who told us about their experiences in using public space and what had to occur to make accessing public space safer for them. Young people wrote about the importance of public space for them and the importance of public space as a means for them to congregate with their peers and to feel connected to their communities.
It is important to acknowledge that like all citizens , young people have a right to access public space. For young people , it is an important means of feeling connected to their friends, their community, engaging with their peer group / s , and engaging in sports and leisure activities. Regrettably this right to accessing public space is not acknowledged or supported by all within the community and as such , y oung people are often subjected to increased police and security attention when gathering in public spaces.
The Bill proposes a series of amendments designed to give police additional powers to search, bar , and remove individuals who are using public space . These changes and our concerns consist of:
The proposed amendments to the Summary Offences Act will enable the Minister to declare certain public spaces ‘ Declared Public Precincts ‘ which are designed to give police similar powers to the powers that they exercise in p rivate spaces. This means police can bar an individual from the ‘D eclared Public Space ‘ for a prescribed time frame.
YACSA is concerned that geographical public areas that may have previously been freely enjoyed by young people will now ( albeit temporarily ) become areas in which they potentially face police scrutiny, fines, barring and/or removal. In addition, how will young people keep informed of these declarations to ensure they know the temporary status of the public space and the potential legal ramifications for entering the area ?
Police are also permitted through this legislation to conduct metal detector searches on anyone who is found within a ‘ declared public space ‘ if they have a reasonable suspicion that the individual is carrying an object which constitutes an offence. If the individual resists or fails to produce the ‘ item ‘ then the police officer can use other search methods ( other than by a metal detector ).
YACSA contends that police already have sufficient powers to search individuals whom they suspect of carrying an illegal item or who have committed or are about to commit a crime. The concern is that young people will again be subjected to unnecessary searches by police while accessing public space.
If the police believe that an individual has committed an offence of any kind that poses a risk to ‘ public order, safety or security ‘ or behaves in an offensive or disorderly manner within a ‘ declared public precinct ‘ then the police can bar the individual from entering the precinct or any other declared public precinct for up to 24 hours. If a n individual , who has been barred from entering a Declared Public Precinct re-enters that space within the prescribed time period then they are subject to fines of up to $2500. YACSA would like to point out that fines, particularly for young people ( whose income may be low or non-existent ) , will create substantial debt for individuals who transgress this new legislation. This debt ( if not paid ) may also lead to further contact with the justice system and unnecessary criminalisation.
For young people, barring becomes a more significant issue i f the geographical location the young person is barred from is part of their local community or a location frequented by their peer group.
The submission goes on to set out how young people under the age of 16 can be removed from a declared public precinct. I do not intend to go through that. I will now go to the conclusion of their submission:
YACSA is concerned that th is section of the legislation will also negatively impact upon young people who access public space due to homelessness. Young people experiencing homelessness are often in public places in groups at night for their own safety. Moving these young people on, or removing them from the public space may serve to criminalise an already marginal ised group of young people.
While YACSA values the need for young people to exist within safe environments we have several questions related to this section of t he Bill. How will young people ( under the age of 16 ) know that the area is now a ‘ declared public precinct ‘? What standards o r criteria ( apart from the broad list contained in the Bill ) will police use to ascertain whether the young person is at risk? Again YACSA believes that young people have the right to access public space and we are concerned that young people will face unnecessary removal from public space and contact with police and other authorities as a result of these changes.
The submission goes on, but I have put on Hansard the relevant pieces. I just want to draw the chamber’s attention to the recent experience in Victoria and the review of Victoria Police’s use of ‘stop and search’ powers. In 2009, the Victoria Police powers to search for weapons was significantly enhanced with the Summary Offences and Control of Weapons Acts Amendment Bill 2009. This amending act empowered the police to search any person without warrant in a public place in an area specifically designated for the purposes of this search power. It also created a new offence of disorderly conduct in a public place.
In 2012, the Office for Public Integrity (OPI) tabled a review of Victoria Police’s use of these new ‘stop and search’ powers. It is useful to consider the Victorian experience when contemplating the bill currently being debated in the chamber. The OPI report found that there were problems with ensuring appropriate transparency and accountability associated with the use of these powers. The report identified the following specific problems associated with the legislation. Victoria Police was not able to meet the legislative reporting requirements due to inadequate data collection and retrieval mechanisms. Problems with definitions and statistical data collection made it difficult to establish how effective ‘stop and search’ powers had been at reducing knife-related crime in Victoria.
Similar powers that were granted in the United Kingdom have not proven to be effective in reducing crime rates. Consequently, the report concluded that accurate data collection is an important tool for enhancing transparency and accountability. The report recommended that Victoria Police needed to address the flaws in statistical reporting to enable the automatic report to be generated, which meets the legislative requirements for reporting to the minister. The report also emphasised that although high-visibility policing can enhance community perceptions of safety and public confidence in the police, ‘stop and search’ operations in designated areas have limited value in isolation from other crime prevention strategies.
The report acknowledged that community education is central to building public confidence that police use their powers effectively to provide safer communities. It is vital that police engage with local communities about where ‘stop and search’ powers have been used, why they were used, and the impact of those operations on knife-related crime. The Victorian experience should be a salutary lesson to us. It reinforces why in this state we should follow other jurisdictions in having an independent body to collect and report on data on our policing, and in turn, the effectiveness of our laws.
I ask the minister why there are no reporting requirements contained in this bill. In the police request to the Attorney-General for powers contained in this bill, were the findings of the Victorian report addressed? Has the government sought to take into account the findings of the Victorian report prior to the decision to enact legislation in the matter before us? I can recall the words of former premier the Hon. Don Dunstan in a debate in the other place on the police officers act. The debate concerned the police powers in respect to the offence of loitering and the need to give reasons. He said:
The only proper place for police powers to interfere with the rights of a citizen to be in a public place is one based on probable cause.
The bill before us represents a Labor Party abandoning the Dunstan legacy of considered legislation with a watchful eye on the need to restrain the powers of the police as well as a deep respect for the rights of our citizens. This bill comes at a time when we have the Acting Police Ombudsman expressing concern at the use of search powers by the police. He writes in his annual report:
If such powers are not carefully monitored, the danger is that the e rosion of civil liberty will gr adually occur over a period of time.
It is incumbent on the minister to give assurance to the chamber that these new powers will not be abused, that mechanisms are in place that prevent their abuse, and that there will be monitoring of the application of the powers in this bill and appropriate data collected. Police operations in a democracy must function with a commitment to the rule of law. This allows the parliament and the executive to operate with legitimacy and our people to retain confidence in the law and our justice system.
I have not been encouraged by the legislation agenda over the past three years that there is a real commitment to the rule of law within the government or the police executive. The powers in this bill have the look of proclamations you would normally expect from a military junta. They do not sit well with our image of the progressive city of Dunstan, which the Labor Party so often proclaim but at the same time relentlessly undermine with harsh laws based on wafer thin supporting evidence. These types of laws are increasingly placing the police as a central component of the power of the state in respect of its peoples. I fear that this bearing is taking this state away from its progressive and inclusive past to a darker future. The Liberal Party will support the second reading and looks to the minister to allay its concerns and make its case.View source