Hansard debates

              SUMMARY OFFENCES AND SENTENCING AMENDMENT BILL 2013
                           Statement of compatibility
Mr  CLARK  (Attorney-General)  tabled  following  statement  in  accordance with
Charter of Human Rights and Responsibilities Act 2006:
  In   accordance  with  section  28   of  the  Charter  of   Human  Rights  and
  Responsibilities  Act  2006, (the  'charter  act'), I make  this  statement of
  compatibility with respect to  the  Summary  Offences and Sentencing Amendment
  Bill 2013.
  In my  opinion, the Summary  Offences  and Sentencing Amendment  Bill 2013, as
  introduced to the Legislative Assembly, is compatible with human rights as set
  out in the charter act.

  I base my opinion on the reasons outlined in this statement.
  Overview of bill
  The  bill  amends  the Summary Offences Act 1966 by expanding the  grounds  on
  which  police members and  protective services officers  (PSOs)  may direct  a
  person to move on from a public place, and enabling police members to apply to
  the Magistrates Court for an exclusion  order where they have  repeatedly been
  directed to move on from a public place.  The bill  also amends the Sentencing
  Act 1991 by creating a new alcohol exclusion order that prohibits a person who
  has been convicted of a relevant offence, in circumstances where the  person's
  intoxication was a significant contributing factor, from entering or consuming
  liquor in specified licensed premises in Victoria.
  Human rights issues

  Changes to move-on powers and the related exclusion orders
  The bill  expands the  grounds on which the move-on powers under section 6  of
  the Summary Offences Act may be used. A person who is directed to move on from
  a public place by police  members or PSOs must leave that public place and  is
  prohibited from returning to it for up  to  24  hours.  The  related exclusion
  orders also prohibit a person from entering a particular public place but  for
  up to 12 months.
  The  amendments impose a  limitation  on an individual's  right to move freely
  within  Victoria as set  out  in section 12 of  the  charter act and  may,  in
  certain circumstances, limit the rights to freedom of expression (section 15),
  and peaceful assembly and freedom of association (section 16).

  However,  for the reasons  that follow these  limitations are consistent  with
  explicit  or  implicit internal limits  on  the rights  or  are reasonable and
  justified under section 7(2) of the charter act.
  All of these charter act rights  can  be subject to restrictions, including to
  protect public order, public  safety and the  rights  and freedoms of  others.
  Section 15  contains an explicit internal  limitation to this  effect (section
  15(3)), but the other sections may be implicitly  limited in  the same way (in
  accordance with the reasoning in  Magee  v.  Delaney  [2013]  VSC 407). In the
  International Covenant on Civil and Political Rights, from which each of these
  charter act rights is derived, there are express internal limitations for each
  of  the rights in relation to measures that are necessary  to  protect  public
  order, public  health  or  morals,  or  the rights and freedoms of others (see
  article 12(3) on freedom of movement, article 19(3) on freedom of  expression,
  article 21 on peaceful assembly and article 22 on freedom of association).

  Although these internal limitations  do not appear in the relevant charter act
  rights,  the internal  limitations in  the  international covenant  illustrate
  matters that may  be  considered to  justify  limitations on those  rights  in
  accordance with section 7(2). The new grounds for  the  use  of move-on powers
  are aimed at protecting public safety and order and the rights and freedoms of
  others. The  grounds ensure there is an appropriate balance  between the right
  to  freedom of movement, freedom of expression, peaceful  assembly and freedom
  of association of  one  individual and the protection of the rights of others,
  including the rights  of  others to  freedom  of movement,  privacy,  property
  rights  and  security. These are  important objectives that  are sufficient to
  justify  the bill's careful and safeguarded  provisions  and  any  limitations
  those provisions may impose on these charter act rights.
  The bill includes a range of safeguards that  minimise effects on the relevant
  charter act rights and ensure any limitation is reasonable.

  A  police  member  or  PSO may tailor a move-on  direction  as  required.  For
  example,  a direction  can be given in respect of an  entire public  place, or
  just part of that place. The duration of  the direction cannot exceed 24 hours
  and need not be for the full 24 hours.
  The making  of an  exclusion order  by a court is discretionary and the  court
  must be satisfied that an order would be a reasonable means of preventing that
  person  from continuing  to behave  in a  manner that  would be  the basis for
  another move-on direction. The court can tailor the  scope  of  the order. For
  example, it may determine  the nature  and extent of the public place that the
  order  applies to, and the duration of the order. Similarly, new section 6E(5)
  of the Summary  Offences  Act enables the court  to allow a person to  enter a
  place to which the exclusion order  applies for specified purposes where it is
  appropriate. Exclusion orders  may also be  varied upon application  where the
  court is satisfied it is appropriate.

  There  are  also  specific   safeguards  around  the  enforcement  of  move-on
  directions and the  related exclusion orders. For  example, a person  does not
  commit the offence of contravening a move-on direction  where he  or she has a
  reasonable  excuse for doing so. A similar exclusion applies to the offence of
  contravening an exclusion order.
  Section 6(5)  of  the  Summary Offences Act excludes the use of move-on powers
  based on the grounds set  out in  section 6(1)(a)  and new  section 6(1)(f) in
  relation to a person  who is picketing  a place of employment,  demonstrating,
  protesting  or  publicising his or  her  view about  a  particular issue. That
  exception will no longer apply to the grounds in sections 6(1)(b)  and (c) nor
  to the remaining four new grounds. Those  grounds  are more closely related to
  unlawful conduct and a move-on power on those grounds  should  not be excluded
  simply  because  a person is  engaged in picketing,  protest  or publicising a
  view. The application of these 

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grounds in such  circumstances will assist  police  in protecting the  rights of
others and maintaining public safety and order.
  Power to require name and address
  The bill creates  a new  power enabling  police members  and PSOs to require a
  person  being directed to move on to provide their name and address. The right
  to privacy set out in section 13 of the charter act is relevant to this power.
  However, in my view this provision is compatible with the right to  privacy as
  it is lawful and not arbitrary. Police will only be able to utilise this power
  where they  intend to direct a person  to move on. This new  power will enable
  police  to keep track of when  a person has been  repeatedly  moved on for the
  purposes of applying for a related exclusion order. It will also assist police
  in determining whether a person contravenes a move-on direction.

  The  use  and  disclosure  of that information would be subject to  the  usual
  protections under the Information Privacy Act 2000.
  Arrest power
  The bill inserts a new  power  into  the  Summary Offences Act, which provides
  that  a police member or  a PSO may, without warrant,  arrest a person if  the
  officer  suspects on reasonable grounds that the person is or has committed an
  offence against section  6(4) of the Summary Offences Act (contravention  of a
  move-on direction). In my view these provisions  are compatible with the right
  to liberty as the grounds for arrest are  clear and appropriate, and cannot be
  regarded as arbitrary.  Section  6(4)  also  provides safeguards that minimise
  interference with liberty by expressly limiting the reasons for which a person
  may be detained in custody.

  Alcohol exclusion orders
  Alcohol exclusion  orders  prohibit a person  from  entering into  a  range of
  licensed premises including nightclubs,  bars, restaurants,  reception centres
  and major events. These orders limit the right  to freedom of movement and are
  relevant to the right to peaceful assembly and freedom of association.
  Alcohol  exclusion orders are aimed  at protecting public order and the rights
  and freedoms  of others, including the right to life and the right to  liberty
  and security of a person. The orders may only be made after a person  has been
  convicted by a court of a relevant offence and the court is satisfied that the
  offender's intoxication  significantly contributed to  the commission  of  the
  offence.

  There is a clear  and  rational connection between the limitation on the right
  to freedom of movement and the purpose of the order. Before making an order, a
  court must be satisfied  that the  person was  intoxicated at  the time of the
  offending. Further,  that intoxication must have significantly  contributed to
  the offending. Thus,  any person subject to  an order has demonstrated through
  their offending  that  they  are a risk to public safety when intoxicated. The
  alcohol  exclusion order will reduce  that risk by ensuring  the person cannot
  enter or  consume  liquor in many  places  where they could  otherwise  become
  intoxicated in public.
  The effect of an alcohol exclusion order reflects the significant contribution
  of alcohol  to  that  offending.  Applying  the  order  to a narrower range of
  licensed  venues  could channel  those  subject  to  the  order  towards those
  licensed  venues not  covered by  the order and thus place the public at those
  venues at risk.

  The strong, mandatory scheme provided for in this  Bill  is  also  intended to
  provide  a clear and powerful deterrent  against  others  committing  relevant
  offences.  The deterrence of  a  discretionary scheme  would  be undermined by
  cases where an order is not made.
  As with  the move-on-related exclusion orders, there are safeguards  to ensure
  alcohol exclusion orders do not inappropriately limit other rights. Courts may
  create  conditions  where  appropriate  allowing  a  person to enter  licensed
  premises  for specified  purposes.  Such purposes  might  include  employment,
  reaching accommodation,  or attending  particular  events  where  appropriate.
  Section 89DG allows a person subject to  the order  to apply for its variation
  throughout the duration of the order.

  Given  this  capacity  to  adjust  alcohol exclusion orders  appropriately  if
  justified by a person's individual circumstances, I  do not consider that they
  create  an unreasonable limitation  on the right to  freedom of movement  when
  balanced with the important  objectives of the orders, including public safety
  and protecting the rights of others.
  Offences for contravening exclusion orders
  New sections  6G  of  the  Summary Offences  Act and  89DF(1) and  (2) of  the
  Sentencing  Act make it  an offence to  contravene a move-on-related exclusion
  order or  an  alcohol exclusion order.  Sections  6G(3) and  89DF(4)  have the
  effect  of placing an  evidential  onus on the  accused where the  prosecution
  adduces proof that the accused was present in court when  the order  was made,
  or proof of service  of  the order on  the  person. The right to  be  presumed
  innocent until proved guilty according to law is relevant to these provisions.

  However, the right is not  limited.  Where the accused points to evidence that
  puts knowledge of the order  at issue, the prosecution will still have a legal
  onus to prove beyond reasonable doubt that the accused knew or was reckless as
  to whether the order was in place.
  Robert Clark, MP
 Attorney-General