Hansard debates

Ms PULFORD (Minister for Agriculture) 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), I make this statement of compatibility with respect to the Justice Legislation Amendment (Protective Services Officers and Other Matters) Bill 2017.

In my opinion, the Justice Legislation Amendment (Protective Services Officers and Other Matters) Bill 2017 (the 'bill'), as introduced to the Legislative Council, is partially incompatible with the human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

Overview of the bill

The bill amends various acts in relation to the functions and powers of protective services officers (PSOs) when on duty at designated places, including railway stations and railway infrastructure. PSOs exercising duties at designated places are known as 'transit PSOs'.

The bill will support the deployment of additional PSOs who will form mobile patrols on the public transport network by expanding the scope of transit PSOs' powers to enable the exercise of those powers both at, and in the vicinity of, a designated place.

The bill also provides PSOs with a range of additional police powers, including powers flagged in the recent Night Network transport security review by former South Australian police commissioner Mal Hyde (the 'Hyde review'). These powers will complement PSOs' existing powers and support their role in combating crime and antisocial behaviour, as well as improving public safety on the public transport network. The new transit powers include the power to:

apprehend a person under an emergency care warrant under the Children, Youth and Families Act 2005;

arrest a person whose parole has been breached or cancelled under the Corrections Act 1986;

request the name and address from a witness to an indictable offence under the Crimes Act 1958;

conduct warrantless searches for drugs of dependence under part VI of the Drugs, Poisons and Controlled Substances Act 1981;

issue infringement notices for supplying liquor to a minor under the Liquor Control Reform Act 1998; and

randomly search members of the public in a specified place, as part of a planned 'control of weapons' operation under the Control of Weapons Act 1990.

The bill also makes other miscellaneous and technical amendments in respect of police and custody matters, including:

to ban cash payments for scrap metal in order to reduce the unlawful dealings and motor vehicle theft that has been identified as being associated with the scrap metal industry;

to implement a recommendation from the Victoria Police Mental Health Review, to allow specialist psychologists to conduct Victoria Police's psychological fitness for duty assessments;

to expressly provide for and regulate the holding of children in police cells to facilitate attendance to and from courts and youth justice facilities; and

to establish a new category of police custody officer (PCO) known as a PCO supervisor for police gaols.

A number of the amendments contained in this bill support the implementation of the government's Community Safety Statement 2017.

PSOs in Victoria

PSOs are a type of 'sworn' Victoria Police personnel. PSOs are highly trained; all PSOs undergo a 12-week training course at the police academy, which gives them the same training as police officers in respect of their specific community protection functions. This includes receiving the same operational tactics and safety training as police officers, which equips PSOs to use their firearms and other equipment safely and appropriately, and to apply principles that help members choose appropriate tactical options to resolve incidents. The principles include: safety first, risk assessment, avoid confrontation, avoid force, and minimum force (where using force is unavoidable). PSOs also undergo the same rail safety training, as is undertaken by members of the Victoria Police transit safety division. Similarly to police officers, PSOs are trained to execute search powers that form part of their functions. This includes receiving training in relation to conducting searches of children.

Under the Victoria Police Act 2013, PSOs are required to comply with the chief commissioner's instructions, including the requirements under the Victoria Police manual (VPM), for property management, security and integrity of evidence, and operational safety and equipment. Failure to comply with the VPM can lead to management and disciplinary action. PSOs are also 'public authorities' under the charter, and are therefore required to give proper consideration to, and act compatibly with, human rights when performing their functions.

Human rights issues

Expanding PSO powers — provisions that are partially incompatible with charter rights

Control of weapons operations — random searches

Division 2 of part 2 of the bill amends the Control of Weapons Act 1990 (the 'CW act') to enable a PSO to exercise powers in a designated area that is declared under section 10D (a 'planned designated area') or section 10E (an 'unplanned designated area') of that act.

Under section 10D, the Chief Commissioner of Police may declare an area to be a 'designated area' (for 12 hours or less), if there have been previous incidents of violence and disorder in that area involving weapons and there is a likelihood that the violence or disorder will reoccur. Notice of a planned designation must be published in the Government Gazette and in daily newspapers specifying the area and the relevant powers authorised to be exercised. Under section 10E, the chief commissioner may declare an area to be a designated area (for 12 hours or less) if satisfied that there is a likelihood that violence and disorder involving weapons will occur in that area; and it is necessary to designate the area to enable police officers to exercise search powers to prevent or deter any anticipated violence or disorder. At present, only police officers have powers to search persons in designated areas. These powers were first introduced in 2009 by the Summary Offences and Control of Weapons Acts Amendment Act 2009 as part of a suite of reforms aimed at tackling violence and disorder, and were further amended in 2010 by the Control of Weapons Amendment Act 2010.

The bill inserts a new section 10GA into the CW act to provide that a PSO on duty at a designated place may, without a warrant, stop and search a person, and search anything in the possession of, or under the control of the person, for weapons, if the person and thing are in a public place that is within a designated area. The bill also amends section 10H of the CW act to provide for the power of a PSO on duty at a designated place to search vehicles. A PSO need not form a reasonable belief or suspicion that the person or the vehicle is carrying a weapon before conducting a search.

Under the bill, a PSO may detain a person for so long as is reasonably necessary to conduct the search, and it is an offence for a person, without reasonable excuse, to obstruct or hinder the police in the exercise of their search powers or to fail to comply with a relevant direction. However, PSOs must conduct the least invasive search that is practicable in the circumstances, and must be supervised by a police officer when conducting the search. PSOs will be authorised to conduct searches in accordance with the requirements set out in schedule 1 to the CW act. However, unlike police officers, PSOs will not be authorised to conduct strip searches. PSOs will also have the power to seize and detain any item detected during a search that the PSO reasonably suspects is a weapon.

In my opinion, new section 10GA and section 10H of the CW act as amended by the bill are incompatible with the rights in sections 13(a) relating to privacy, and 17(2) of the charter relating to protection of the best interests of children, for the reasons outlined below. The rights in sections 20, 21 and 25(1)(k) of the charter are also relevant to these provisions of the bill; however, I consider that these rights are not impermissibly limited by the bill.

Privacy

Section 13(a) of the charter provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. The concept of 'privacy' encompasses notions of personal autonomy and dignity. The power to conduct random searches of persons or vehicles in a particular area will constitute a potential interference with the right to privacy.

The power to conduct the searches and the circumstances and manner in which they are permitted to occur, are clearly provided for in the provisions of the bill and the CW act. As such, the interference with privacy occasioned by these new powers will not be an unlawful interference. However, an interference will also be incompatible with the charter if it is an 'arbitrary' interference. 'Arbitrariness' has been said to incorporate a lack of proportionality to the ends sought, and lack of justification, inappropriateness, injustice or lack of predictability.

In the statements of compatibility that accompanied the Summary Offences and Control of Weapons Acts Amendment Act 2009 and the Control of Weapons Amendment Act 2010, it was concluded that the provisions governing the exercise of these random search powers by police are incompatible with the section 13(a) of the charter. I am of the opinion that this aspect of the bill, which confers some of the same search powers on PSOs, may also be incompatible with section 13(a) of the charter.

I note that unlike police who may exercise their random search powers at any location that has been temporarily declared to be a designated area under the CW act, PSOs can only exercise these powers when they are on duty at a designated place that overlaps with, or is in the vicinity of, a declared designated area. Further, unlike police, the bill does not permit PSOs to conduct strip searches in designated areas. As such, one of the bases on which those previous statements reached a conclusion of incompatibility with the right to privacy is not present in this bill. Further the provisions that will now apply to the new search powers of PSOs to conduct searches are carefully tailored to protect against inappropriate use; for example:

Designations can only be made in the limited circumstances set out in sections 10D and 10E as outlined above. Those circumstances are directed to patterns of weapons-related offending that present significant challenges for police.

The designations must be geographically limited to an area that is no larger than is reasonably necessary to effectively respond to the particular threat.

Each designation only operates for a limited time. In addition to the maximum durations of 12 hours, the period of operation of a designation must be for no longer than is reasonably necessary to enable the police to respond effectively to the particular threat (unless the designation is in relation to an event, in which case more than one period of designation may be declared).

In the case of planned designations, the requirement to publish a notice in the Government Gazette and through daily newspapers will enable at least some members of the public to moderate their expectations and to avoid travelling through the designated areas if they are sufficiently concerned about the effect on them of the search power.

Any search of a person under new section 10GA must be graduated, commencing with the least intrusive form of search available, i.e. a search by the use of a metal detection device and only proceeding to a pat-down search and search of outer clothing if, as a result of the initial search, the member considers that the person may be concealing a weapon. These requirements seek to preserve the dignity of persons subjected to a search.

New section 10I(1A) that is inserted by the bill provides written and oral notice requirements that apply once any person or vehicle is detained by a PSO for the purposes of a search. These requirements ensure that the person is informed of the reason for and authority for the search and, if they wish to know it, the identity of the PSO.

When exercising their search powers, PSOs will be under the operational supervision of police; police officers will also be carrying out searches in the designated area at the relevant time.

Despite these safeguards, I accept that the power to randomly search persons and vehicles in public places within designated areas, even where the PSO has not formed a reasonable suspicion that the person or vehicle is carrying a weapon, could be considered an arbitrary interference with privacy in the same way as police officers' existing powers. The government intends to proceed with this legislation notwithstanding the conclusion that it is incompatible to the extent described above with section 13(a) of the charter.

Protection of the best interests of children

Section 17(2) of the charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

The powers contained in division 2 of part 2 of the bill will permit PSOs to randomly search children who are in a public place within a designated area, as well as adults. I have already determined that new section 10GA that is to be inserted into the CW act by the bill, and section 10H as amended by the bill are incompatible with the charter in relation to section 13(a). Similarly, I have determined that they are incompatible with section 17(2). However, the government believes that this legislation is important for preventative and deterrent reasons, including the protection of children.

Liberty and freedom of movement

Section 21 of the charter provides that all persons have the right to liberty and security of the person, including the right not to be arbitrarily detained, and sets out the minimum rights of individuals who are arrested or detained. By restricting the valid reasons for detention, the charter aims to minimise the risk of arbitrary or unlawful deprivation of liberty. Section 12 of the charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

The rights to liberty and security in section 21 of the charter, and the right to freedom of movement in section 12, are relevant to the search powers contained in the bill to the extent that the exercise of those powers prevent an individual from being free to move on from the place where they are searched. However, I have concluded that the search powers do not amount to arbitrary interferences with liberty or security. Further, I have concluded that any limit to a person's freedom of movement is reasonable in all of the circumstances and demonstrably justified in accordance with section 7(2) of the charter.

For the search powers to be effective, PSOs must be able to place whatever restrictions on the liberty of individuals that are necessary in order to ensure that they receive cooperation for the duration of the search. The new powers to detain are strictly limited to what is reasonably necessary to conduct the search. In my view, therefore, those sections are not incompatible with the charter right not to be subjected to arbitrary detention, and otherwise amount to a reasonable and proportionate limit to freedom of movement. I note also that new section 10I(1A) contains notice requirements that ensure that any person who is detained is informed of the reason for the search in compliance with section 21(4) of the charter, namely the right of persons who are detained to be informed of the reason for the detention.

It is my opinion that the powers of detention, which are strictly confined to what is reasonably necessary to conduct a search, are compatible with section 21 of the charter. However, I accept that a person may reach a different view if it is considered that, to the extent that random search powers themselves are arbitrary (and therefore incompatible with section 13(a) of the charter), this results in any attendant deprivation of liberty also being arbitrary. If that were the case, then the relevant provisions would also be incompatible with section 21.

Property

The property right as protected by section 20 of the charter is also relevant to the powers to seize suspected weapons. That right protects against any deprivation of property other than in accordance with law. However, in my view, any deprivation of property will be in accordance with law and, accordingly, the right in section 20 is not limited. I note also that under the CW act, if a PSO who seizes and detains a suspected weapon, determines after examination of the item that it is not a weapon, the PSO must return the item to the person from whom it was seized, without delay.

Presumption of innocence

Section 25(1) of the charter provides that any person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) of the charter is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence.

Section 10L of the CW act, which is amended by the bill now provides for an offence where a person 'without reasonable excuse' obstructs or hinders a PSO in the exercise of their search and seizure powers under sections 10AA, 10GA, 10H or 10J of the CW act. Provisions that create 'reasonable excuse' exceptions to offences may be viewed as engaging the right to be presumed innocent in section 25(1) of the charter by placing an evidential burden on the accused.

The reverse onus is required in relation to these offences, as the 'reasonable excuse' exception relates to matters which are peculiarly within an accused's knowledge and introduce additional facts from the subject matter of the offence, which would be unduly onerous for a prosecution to investigate and disprove at first instance. Further, I note that these defences are available for the benefit of an accused to escape liability where they have taken reasonable steps to ensure compliance, in respect of what could otherwise be an absolute or strict liability offence. Once the accused has pointed to evidence of a reasonable excuse, which they should have access to if the excuse is applicable, the burden shifts back to the prosecution who must prove the essential elements of the offence to a legal standard. I am of the view that there is a negligible risk that these provisions would allow an innocent person to be convicted of any of these offences. Accordingly, I am of the view that this offence provision does not limit the right in section 25(1) and is therefore compatible with the charter.

Expanding PSO powers — provisions that are compatible with charter rights

Mobile transit PSOs

The bill amends the Victoria Police Act 2013 and various other acts to enable transit PSOs to exercise their powers at or 'in the vicinity of' a designated place. These amendments do not give PSOs powers at large; rather, they seek to ensure that PSOs can use their designated place powers at and near a designated place. For example, it is intended that PSOs can use their designated place powers where a public safety incident occurs in sight of a PSO at a designated place but technically outside that place, or where an offender runs outside the designated place.

The bill's expansion of the scope of a PSO's powers to continue beyond a designated place, which supports the Community Safety Statement, whose aims include improving safety and holding offenders to account, does not, of itself, raise any human rights issues. PSOs will be able to use their existing powers outside the designated place to the limited extent as described. I am satisfied that the PSOs' existing powers are compatible with the human rights protected by the charter, because any limitations on human rights that may occur pursuant to the exercise of those powers are reasonable and justified having regard to the important purposes of preventing offences and protecting the public. To the extent that the bill provides PSOs with new or expanded powers, which may be exercised both at a designated place and in the vicinity of a designated place, the compatibility of those new powers with human rights is discussed in this statement.

Apprehending a child under an emergency care warrant

Division 1 of part 2 of the bill extends the protective apprehension powers of PSOs by inserting a new part 8.3A into the Children, Youth and Families Act 2005 ('CYF act') under which a PSO may apprehend a child in respect of whom the Children's Court has issued a search warrant under a number of specified provisions, for the purpose of having the child placed in emergency care. These emergency care warrants may be issued by the Children's Court where it has been determined that a child is in need of protection and either has failed to appear before the court or needs to be placed in a protective care environment. The Hyde review noted that where a warrant has been issued under the CYF act (for example, to search for and apprehend a child who is absent without lawful authority from interim accommodation), it could be expected that the child may be located using the public transport system and that PSOs may be in a position to assist with their apprehension.

The new power only arises where a PSO is on duty at a designated place and the child named in the search warrant is at or in the vicinity of the designated place. If a PSO arrests a child under this provision, the PSO must hand the child into the custody of a police officer as soon as practicable after the child is apprehended. The police officer will then process the child in accordance with existing legislative provisions.

Right to liberty and freedom of movement

The rights in section 21 (protecting the right to liberty and security of the person), and section 12 (freedom of movement) of the charter are relevant to the power of PSOs to apprehend and detain a child who is named in an emergency care search warrant under new part 8.3A of the CYF act. To the extent that the apprehension of a child by a PSO in accordance with a search warrant will result in that child's rights to liberty and freedom of movement being limited, in my opinion any such limits are reasonable and justified in order to achieve the purpose of ensuring the safety of the child.

In general terms, an emergency care search warrant will only be issued by a magistrate where it has been determined that the child is at risk or in need of protection within the meaning of the CYF act and other means of gaining access to the child or placing the child in emergency care would not be effective. As such, any limits to the human rights of children that occurs through the execution of the warrant will not be arbitrary. Further, the bill seeks to minimise the duration and extent of the limits on liberty and freedom of movement, and includes a number of procedural safeguards that will assist in ensuring that detention following arrest does not become arbitrary. PSOs' power of apprehension is appropriately limited with reference to the terms of the search warrant that has been issued and being confined by reference to the designated place. The bill only authorises apprehension and detention to the extent necessary to convey the child into the custody of a police officer, for the purpose of having the child placed in a protective care environment or being brought before a court.

Therefore, in the circumstances, limiting these rights is a proportionate means to achieving a legitimate public purpose. The powers of apprehension mirror powers that members of the police force currently have in order to address the immediate risk to the child, in order to improve the efficacy of executing emergency care warrants and in order to keep vulnerable children and young people safe. However, unlike police officers, PSOs will not have the powers to break, enter and search premises to apprehend a child pursuant to these warrants.

Protection of families and best interests of children

The vulnerability and special status of children, and the special status of families, are recognised under several provisions of the charter. In particular, section 17(1) provides that families are the fundamental group unit of society and are entitled to be protected by society and the state. Section 17(2) of the charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

The CYF act establishes a scheme for the welfare of children found by the Children's Court to be 'in need of protection'. In this legislative context, the power of PSOs to apprehend a child in order to facilitate them being placed in emergency care is protective of the best interests of the child, and therefore promotes the right in section 17(2). Importantly, an emergency care warrant is issued by a magistrate following an assessment of why being placed in emergency care is in the child's best interests, having regard to the factors set out in the CYF act. Improving the effectiveness of the processes by which a child, who is the subject of a warrant, may be apprehended is also consistent with the aims of the community safety statement to reduce harm and keep vulnerable children and young people safe.

Although the placement of a child in emergency care may involve the removal of a child from the care of their family, any such removal is to prevent an immediate and unacceptable risk of harm to the child and this action will only be taken following a comprehensive assessment of the circumstances in accordance with the criteria in the CYF act. As such, to the extent that the power of a PSO to apprehend a child who is the subject of an emergency care search warrant limits the right to protection of families and children, I am satisfied that such a limit is demonstrably justified in accordance with section 7(2) of the charter.

Arrest powers in relation to breach or cancellation of parole

Division 3 of part 2 of the bill extends to PSOs the power under section 77B of the Corrections Act 1986 to arrest a prisoner whose parole has been cancelled or taken to be cancelled, where a warrant has been issued by either the adult parole board or a court. If a PSO arrests a person under this provision, the PSO must hand the person into the custody of a police officer as soon as practicable after the person is arrested. It will be the responsibility of police officers to return the prisoner to prison, in accordance with existing provisions of the Corrections Act.

Division 3 also extends to PSOs the power under section 78B of the Corrections Act to arrest, without a warrant, a prisoner released under a parole order, if the PSO suspects on reasonable grounds that the prisoner has committed an offence against section 78A (namely breaching a parole term or condition). Again, if a PSO arrests a person under this provision, the PSO must hand the person into the custody of a police officer as soon as practicable after the person is arrested. These powers of arrest for suspected breach or cancellation are existing powers held by the police force; however, unlike police officers, PSOs will not have the powers to break, enter and search premises in order to arrest a person whose parole has been cancelled. These powers are consistent with community safety statement aims of preventing and detecting crime, improving safety and holding offenders to account.

Rights to liberty and freedom of movement

Arresting and detaining a person who is on parole will amount to a prima facie interference with that person's freedom of movement and may be regarded as a deprivation of liberty. However, the sentence of imprisonment that the person is ultimately required to serve as a result of the cancellation of parole is one that is imposed by a court for the punishment of the offence and protection of the community. In circumstances where parole is cancelled, it is appropriate that the person be required to serve the full term of imprisonment in order to protect the community from further offending. As such, the cancellation, or possible cancellation of parole cannot properly be construed as depriving a person of their liberty.

Moreover, the bill includes a number of safeguards which restrict the use of these new powers of arrest by PSOs. The new power in section 77B may only be exercised where the person's parole has been cancelled and the adult parole board or a court has issued a warrant for their arrest. Although a PSO may arrest a prisoner under new section 78B without a warrant, they may only detain that prisoner in custody in certain situations. For example, only a PSO who is on duty at a designated place may arrest the prisoner and only if the prisoner is at the designated place. The requirement that PSOs can only detain any prisoner who they arrest until such time as they may be handed into the custody of a police officer, minimises the duration and extent of the limits on liberty and freedom of movement.

In my opinion, in this context, any apparent limits on the rights to liberty and freedom of movement of a person on parole in respect of whom a warrant has been issued, or who is reasonably suspected as having breached a condition of their parole, are not arbitrary and otherwise are justified in order to ensure the proper operation of the parole system and the protection of the community.

Requesting name and address of suspected offender or person with information about an indictable offence

Division 4 of part 2 of the bill amends the Crimes Act 1958 to extend to PSOs the power in section 456AA(2) of that act to request a person's name and address, where the PSO believes on reasonable grounds that the person has committed, or is about to commit, an offence, whether indictable or summary, or may be able to assist in the investigation of an indictable offence which has been committed, or is suspected of having been committed. When exercising the powers to require a person's name and address under the Crimes Act, the PSO must inform the person of the grounds of the belief, in sufficient detail to allow the person to understand the nature of the offence or suspected offence. A person commits an offence if they do not comply with the request for their name and address.

The power of a PSO to compel a person to provide their name and address in these specified circumstances may constitute an interference with the person's privacy as protected by section 13(a) of the charter. However, I am satisfied that any interference with privacy would be neither unlawful nor arbitrary. In particular, these powers will serve an important purpose of enabling PSOs to obtain basic investigative information to give to investigating police officers. In addition, when an offence is committed at a designated place, PSOs are often the first officers at the scene and able to quickly identify persons who may be able to assist with an investigation. These powers will therefore complement the community safety statement aims of preventing and detecting crime, improving safety and holding offenders to account.

Searches without warrants for drugs of dependence

Division 5 of part 2 of the bill extends the search and seizure powers under section 82 of the Drugs, Poisons and Controlled Substances Act 1981 (DPCS act), empowering PSOs to search for drugs of dependence without a warrant. The bill inserts a new section 82A into the DPCS act to provide that a PSO on duty at a designated place may exercise all the powers of, and all the duties given to or imposed on, a police officer under section 82, with certain limited exceptions as specified in the bill.

Under section 82, as applied by new section 82A, where a PSO has reasonable grounds for suspecting that on or in a vehicle, on an animal, or in the possession of a person in a public place, there is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed, the PSO may search the vehicle, animal or person. If, in the course of a search, the PSO on duty at a designated place seizes any instrument, device, substance, drug of dependence or psychoactive substance, the PSO must, as soon as practicable after the seizure, give the item to a police officer who must deal with the item according to law. These powers will complement PSOs' existing powers to search persons for volatile substances.

Privacy

The new search powers introduced by division 5 are relevant to a person's right to privacy, as the powers may involve an interference with a person's bodily integrity. It is arguable that, in the absence of a requirement to seek a warrant, these searches have the potential to arbitrarily intrude into the private sphere of any person at a designated place. In my view, the power to search a person for a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed will not constitute an arbitrary or unlawful interference with privacy. The limited circumstances in which a search may be conducted are clearly set out in the relevant provisions and are appropriately circumscribed. For the powers to be lawfully exercised, the relevant officer must possess the requisite belief or suspicion that the drug of dependence is present, and that there has been an offence committed in respect of that drug. I am satisfied that any interference with a person's privacy that occurs will therefore be permitted by law.

Further, the search powers are not arbitrary as they are reasonable and proportionate to the law's legitimate purposes of improving safety, deterring criminal and harmful behaviour and holding offenders to account, and in this way they implement some of the aims of the community safety statement. It is my view that the nature and scope of the search powers conferred on PSOs are proportionate to the purpose of the new provisions. I do not consider there to be any less restrictive means reasonably available to ensure community safety is improved, drug-related harm is prevented, and crime is detected and prevented.

Liberty and freedom of movement

The rights to liberty and security in section 21 of the charter and the right to freedom of movement in section 12 are relevant to the powers to search for drugs of dependence without a warrant to the extent that the exercise of those powers results in a person been restrained or detained while they are searched. In my opinion, for the reasons discussed above in relation to the privacy right, I am satisfied that the search powers do not amount to arbitrary interferences with liberty or security, nor do they impermissibly limit the right to freedom of movement. Further, I have concluded that any limit to a person's freedom of movement is reasonable in all of the circumstances and demonstrably justified in accordance with section 7(2) of the charter.

Property

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with the law. In my opinion, any deprivation of property that results from the seizure and forfeiture of items under the DPCS act will be in accordance with the law and, accordingly, the right in section 20 is not limited. To safeguard the chain of custody, the bill requires that PSOs who locate drugs of dependence or a related item are required to give the item to a police officer as soon as practicable. As is the case for police officers, PSOs will continue to be required to comply with the property management standards contained in the VPM. Failure to comply with these standards can lead to management and disciplinary action.

Other amendments

Banning the use of cash to pay for scrap metal

Part 3 of the bill amends the Second-Hand Dealers and Pawnbrokers Act 1989 (the SHD act) to implement the community safety statement's commitment to ban cash for scrap metal in order to ensure that tracing information will be available for transactions relating to scrap metal. Victoria Police has identified the lawful scrap metal industry as being highly susceptible to infiltration by organised crime, which was also reflected in the Victorian Law Reform Commission's report on regulatory regimes and organised crime. Cash-based transactions for scrap metal can conceal unlawful dealings and incentivise motor vehicle theft. These reforms to ban cash for scrap metal will reduce the risk of offending.

Currently, under the SHD act, any person or company who carries on the business of buying, selling, exchanging or otherwise dealing in second-hand goods meets the definition of 'second-hand dealer', unless an exemption applies. The SHD act contains various enforcement powers in relation to second-hand dealers. The amendments contained in the bill will take effect in conjunction with the amendment of the Second-Hand Dealers and Pawnbrokers (Exemption) Regulations 2008. The existing exemption that applies to persons or businesses who deal with metals, will be amended so that anyone carrying on the business of dealing in scrap metal will be a second-hand dealer for the purposes of the SHD act, whether or not they are registered under that act.

In addition to banning cash payments for scrap metal, the bill prohibits trade in unidentified motor vehicles by creating an offence for second-hand dealers to buy scrap metal that consists of a motor vehicle if the vehicle identifier has been removed, obliterated, defaced or altered; and an offence for second-hand dealers to possess, sell or otherwise dispose of scrap metal of this nature, unless authorised to do so by a police officer in writing. To ensure the new provisions act as a strong deterrent to those who commit motor vehicle theft and who seek to conceal unlawful dealings through the scrap metal industry, the new offences for paying or accepting cash for scrap, or trading in unidentified motor vehicles carry a substantial penalty of 200 penalty units. To avoid retrospectivity, these offences will only apply where a second-hand dealer comes into possession of the motor vehicle after the commencement date of the new offences. The bill also imposes a new requirement on second-hand dealers who receive or dispose of scrap metal to keep accurate and complete records of every transaction of this nature. Record-keeping requirements will be further prescribed by regulation.

Clause 24 of the bill amends the general police powers contained in section 25 of the SHDP act to provide police with an express power to enter, without a warrant, a business or storage premises occupied by or under the control of a second-hand dealer and to inspect the premises or any goods at the premises, where the business of dealing in scrap metal is, or is reasonably believed to be, being carried on at the premises. This new power will permit police to enter and search business premises or storage premises at any time when it is apparent that business is being carried on there, not just when the premises are open (as is the case under the current provisions).

Clause 25 of the bill introduces a new division 4 of part 5 into the SHD act, which provides for search warrants to be issued in respect of any premises (whether or not they are premises occupied by or under the control of a second-hand dealer) for the purposes of monitoring compliance with the SHD act in relation to second-hand dealers. If the magistrate is satisfied by evidence on oath, or by affidavit, that the warrant is necessary for the purposes of monitoring compliance, the magistrate may issue a warrant. The warrant authorises the police officer to enter the premises, and to search for, seize, secure against interference, examine and inspect, make copies or take extracts from things named in the warrant that are believed on reasonable grounds to be connected with a contravention of the SHD act or the regulations, in relation to second-hand dealers.

In addition to stipulating the requirements for search warrants and their execution, the bill also provides for the seizure of things not mentioned in the warrant in certain limited circumstances, and provides for the police officer to issue an embargo notice to prevent a thing that cannot readily be physically seized and removed being sold, leased, moved without consent, transferred or otherwise dealt with. Despite anything in any other act, a sale, lease, transfer or other dealing with a thing in contravention of an embargo notice will be void.

Privacy and property

The restrictions contained in the bill relating to scrap metal may interfere with the property rights of second-hand dealers in that they restrict the manner in which they can deal with scrap metal that is in their possession. However, I am satisfied that the right in section 20 of the charter is not limited, because any deprivation of property that occurs under the bill will be in accordance with law. Further, the provisions also aim to reduce financial incentives for car theft, and in this way are protective of property rights.

The ability for police to enter premises occupied by, or under the control of, second-hand dealers without a warrant, or to enter any premises with a warrant, and to search those premises, will also potentially interfere with privacy, as protected by section 13(a) of the charter. To the extent that the privacy right is engaged, I am satisfied that any interference would be lawful and not arbitrary. In addition, I consider that any detention or seizure of items in reliance on a search warrant issued in accordance with these provisions, would constitute a lawful deprivation of property and therefore would not limit the right in section 20 of the charter.

Having regard to the purposes for which these reforms are being introduced, it is necessary for police to have strong and effective powers to identify where scrap metal may be being dealt with in contravention of the SHD act and to seize and preserve scrap metal and other things that may be evidence of offences. Further, the powers to enter, search and seize under the bill are suitably circumscribed and accompanied by appropriate safeguards. For example, in order for police to enter a premises without a warrant under new section 25(1A), police must know or reasonably believe that a business of dealing in scrap metal is being carried on at the premises. Unless there is a warrant, police may only inspect the premises and goods and may not seize any items. New section 25(1A) intentionally permits entry without a warrant at any time the scrap metal business is being carried on, rather than just when the second-hand dealer's premises are open. However, as is the case with police officers' current powers under section 25, this power only permits entry to business or storage premises, and not any part of premises used for residential purposes only. The power may only be executed in respect of premises occupied by or under the control of a second-hand dealer as defined in the act. While it would be less restrictive on business operators' privacy to only permit entry during hours of business operation, the aim of this regulatory scheme is to prevent and disrupt criminal conduct occurring in the scrap metal businesses. This new power to enter at any time is necessary to prevent businesses dealing with scrap metal from being able to evade compliance inspections by police and will enable effective enforcement action to be taken to clean up the industry.

Where a magistrate is satisfied on the evidence that a warrant is necessary for the purpose of monitoring compliance, and police enter a premises in execution of a warrant issued under new division 5, the bill requires police to announce their authorisation before entering and provide an opportunity for allowing them entry to the premises and to provide details of the warrant to the occupier of the premises. The bill clearly sets out the limited circumstances — linked with enforcing compliance with the legislative scheme — in which things not named in the warrant may be seized, and prescribes specific requirements for how police must deal with seized documents and things, which are subject to the supervision of the Magistrates Court.

For these reasons, I am of the opinion that these new enforcement provisions relating to the scrap metal industry are compatible with the rights in sections 13(a) and 20 of the charter.

Presumption of innocence

As discussed above, the right in s 25(1) of the charter, which protects a person's right to be presumed innocent until proved guilty, is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding.

Under new subsection 26ZK(2), introduced by clause 25 of the bill, it is an offence for a person who knows that an embargo notice relates to a thing, to sell, lease, move (without the written consent of the police officer who issued the embargo notice), transfer or otherwise deal with the thing. New subsection 26ZK(3) provides that it is a defence to a prosecution for this offence to prove that the accused moved the thing or the part of the thing for the purpose of protecting and preserving it. The right in section 25(1) of the charter is relevant new section 26ZK(3), because it places the legal onus of proof on a defendant with respect to available defences.

The right to be presumed innocent is an important right that has long been recognised under the common law. However, the courts have held that it may be subject to limits, particularly where, as here, a defence is enacted to enable a defendant to escape liability. In these circumstances, the purpose for which an accused moved a thing that was subject to an embargo notice is a matter that is peculiarly within the defendant's knowledge. The imposition of a burden of proof on the accused is directly related to the purpose of enabling the relevant offence to operate as an effective deterrent, while also providing a suitable defence in circumstances where the contravention was not deliberate. Further, the limit on the right to be presumed innocent is imposed only in respect of the defence. The prosecution will still first have to establish the elements of the offence, including that the accused knew that an embargo notice was in operation. Although an evidential onus would be less restrictive than a legal onus, it would not be as effective because it could be too easily discharged. The inclusion of a defence with a burden on the accused to prove the matters on the balance of probabilities achieves an appropriate balance of all interests involved. Accordingly, in my view, the limitation imposed on the right to be presumed innocent by section 26ZK(3) is reasonable and justifiable in accordance with section 7(2) of the charter.

The right in section 25(1) is also relevant to new section 26ZP, introduced by clause 25 of the bill. That provision provides that it is an offence for a person to refuse or fail, without reasonable excuse, to comply with a requirement of a police officer under this division. By creating a 'reasonable excuse' exception, this offence may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse or belief. However, in so doing, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse or belief, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution. For these reasons and those set out above, these provisions do not limit the right to be presumed innocent.

Self-incrimination

Section 25(1)(k) of the charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against himself or herself or to confess guilt.

This right is relevant to the provisions introduced by the bill that require the occupier of a premises at which a search warrant is being executed to cooperate with police. New section 26ZP provides that a police officer may, to the extent that it is reasonably necessary to determine compliance, require the occupier, or an agent or employee of the occupier, to give information to the police officer, orally or in writing, to produce documents, and to give reasonable assistance to the police officer. Under new section 26ZP it is an offence to refuse or fail, without reasonable excuse, to comply with a requirement of a police officer. Under new section 26ZR, it is an offence to give false or misleading information. New section 26ZQ(1) provides that a person is not excused from answering a question or producing a document on the ground that the answer or document might tend to incriminate the person.

New section 26ZQ(1) abrogates the privilege against self-incrimination, and in doing so constitutes a limit to the charter's protection against self-incrimination. However, it is replaced by a direct use immunity in subsection 26ZQ(2) which provides that if the person claims, before answering a question, that the answer might tend to incriminate the person, the answer is not admissible in evidence in any criminal proceeding other than in any proceeding in respect of the falsity of the answer.

While section 267Q(2) prevents a person's answer from being admissible in a criminal proceeding, because there is no 'derivative use' immunity, their answer may also be used to uncover further evidence that incriminates the maker of the statement, and which may be used in later criminal or civil penalty proceedings.

Although new section 267Q(2) limits the right against self-incrimination by not providing a derivative use immunity, the statutory purpose underlying the limit to the right is to enable police to effectively perform their law enforcement and compliance functions in relation to the new ban on cash for scrap metal, having regard to the difficulties faced when an occupier of premises at which there may be evidence of contraventions refuses to answer. It also ensures that any evidence that is relevant to contravention of the scheme can be acted upon in an investigatory sense, whilst the direct use immunity still protects the person who is required to provide the incriminatory information. Further, the absence of a derivative use immunity engages the rationale for the privilege against self-incrimination to a lesser extent than the direct use of evidence because of the fact that the derivative evidence exists independently of the will of the accused.

I acknowledge that there is no accompanying 'use immunity' that restricts the use of the produced documents. The privilege against self-incrimination generally covers the compulsion of documents or things which might incriminate a person. However, at common law, the High Court of Australia has recognised that application of the privilege to pre-existing documents is considerably weaker than that accorded to oral testimony or to documents that are required to be brought into existence to comply with a request for information. I also note that some jurisdictions have regarded an order to hand over existing documents as not engaging the privilege against self-incrimination. The primary purpose of the abrogation of the privilege in relation to documents is to facilitate compliance with the legislative regime by assisting police to access information and evidence that is difficult or impossible to ascertain by alternative evidentiary means. Taking into account the protective purpose of the amendments, there is significant public interest in ensuring that the environments that are regulated by these provisions are operating in compliance with the SHDP act. I am satisfied that any limitation on the right in section 25(2)(k) that is occasioned by the limited abrogation of the privilege in respect of produced documents is directly related to its purpose. The documents required to be produced are those that are connected with an alleged contravention of the act. This is because the powers to require production of documents under these provisions are only exercisable where there is a basis on which entry and search of a premises where a magistrate has issued a search warrant on the grounds outlined above. Importantly, the requirement to produce a document does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate, the privilege would still be available.

For these reasons, I am of the opinion that these limits on the right in section 25(2)(k) of the charter are justified in accordance with section 7(2) of the charter.

Mental Health Review recommendation

Victoria Police's mental health review (published in May 2016) made 39 recommendations to improve mental health, wellbeing and suicide prevention outcomes in the organisation. Clause 60 of the bill implements recommendation 14 of that review, by amending the Victoria Police Act 2013 (VP act) to provide for a police officer or a PSO to be examined by a registered psychologist nominated by the Chief Commissioner of Police, for the purposes of conducting psychological fitness for duty assessments. These assessments are part of the ill-health retirement process in section 67 of the VP act. That provision enables the chief commissioner to inquire into the physical or mental fitness and capacity of an officer to perform his or her duties. Currently, fitness for duty assessments are carried out by Victoria Police's medical advisory unit which is separate from Victoria Police's psychology services. These changes also implement the government's commitment in the community safety statement to ensure police officers are safe and healthy, both at work and at home.

Medical treatment without consent and privacy

Section 10(c) of the charter provides, relevantly, that a person has the right not to be subjected to medical experimentation or treatment without their full, free and informed consent. In addition, section 13(a) of the charter protects a person's right not to have their privacy unlawfully or arbitrarily interfered with. In addition to protecting a person's private information, the right in section 13(a) extends to protecting an individual's personal autonomy and integrity.

The amendment to section 67 of the VP act contained in the bill only extends the existing power of the chief commissioner to require an officer to be assessed by a registered psychologist (in addition to the existing powers relating to a police medical officer or a registered medical practitioner). In my opinion, being required to undergo a psychological assessment as provided in the bill would not involve 'medical treatment' for the purposes of the charter, as the nature of the assessment or examination is unlikely to involve any procedures which could constitute medical treatment. The Supreme Court of Victoria has held that 'medical treatment' under section 10 of the charter means medical treatment as defined by section 3 of the Medical Treatment Act 1988; that is an operation, the administration of a drug or other like substance, or any other medical procedure with the exception of palliative care. Accordingly, the protection against medical treatment without consent in section 10(c) of the charter is not, in my view, relevant to this amendment. Even if being required to undergo a psychological assessment was considered to be medical treatment, I consider that any limit to this right that occurred would be demonstrably justified. Police officers and PSOs are charged with protecting the community and are given a broad range of powers to do so. The exercise of these police powers can significantly limit the rights of citizens, including the rights to life, liberty and security. It is essential to the protection and promotion of those rights that the chief commissioner has sufficient powers to effectively investigate whether an officer is affected by a health issue that may affect their ability to carry out their duties, and to investigate and manage the performance of officers.

Under section 67 of the VP act, the person conducting the examination or assessment may be required to give a report of the examination to the police officer or PSO and the chief commissioner. This provision enables interferences with the privacy of officers; however, I am of the view that such interferences will be for the reasonable purpose of assessing fitness for duty. Further, any requirement to attend for an examination or assessment will be subject to the terms of relevant industrial instruments which confine the circumstances in which an officer must attend an examination to those where there is legitimate reason to question capacity. In my view, clause 67, as amended by the bill does not constitute either an unlawful or an arbitrary interference with privacy.

Transitional holding of children in police gaols

Clause 59 of the bill inserts a new section 347A into the CYF act to provide express authority to temporarily hold or detain a child in a police gaol, for the purposes of facilitating the transportation of a child between a youth justice facility and a court.

The Children's Court, which hears cases involving children who are on remand or in detention under the CYF act, sits at various metropolitan locations. Not every court premises has holding rooms on site. As such, children and young people are sometimes transitionally held in a police gaol either before or after the court appearance. These technical amendments are being made to ensure that this practice of temporarily holding children, which is necessary to ensure the efficient administration of the youth justice system, is appropriately provided for and regulated. I confirm that this temporary power to hold children in police gaols in order to facilitate transport to and from a court or an inquest is intended to be used in limited situations where a child is required to appear in a court and cannot be otherwise accommodated in a holding cell. It does not permit the ongoing accommodation in police gaols of children who have been remanded or sentenced to reside at a youth justice facility. The amendment is unrelated to the temporary holding of children in a police gaol that occurred following the damage that occurred at the Parkville youth justice centre in 2016.

The power to hold or detain children in police gaols raises the following charter rights: the right of a child to such protection as in his or her best interests (section 17(2)); the rights of children in the criminal process (section 23) and the rights to humane treatment when deprived of liberty, including the right of a person on remand to be segregated from convicted persons except where reasonably necessary (section 22). In my view, to the extent that these human rights are limited by this context, any such limit would be justified.

If a child has been remanded or sentenced to a youth justice facility and they are subsequently required to be brought before a court, it is essential for police who are tasked with facilitating the transportation of the child to be able to safely and securely hold or detain the child either before or after their court appearance. In light of the practical difficulties at certain court locations that do not have holding cells, temporarily accommodating children in police gaols is the least restrictive means to achieve this purpose.

The transitional holding power contained in the bill is accompanied by a number of safeguards to protect a child's human rights and to minimise the duration and extent of any necessary limits to those rights. For example, under new section 347A, if a child is held or detained in a police gaol, the period of holding the child must be no longer than two working days, the child must be kept separate from any adults also detained at the gaol, and is entitled to be kept separate according to the child's gender. For these reasons, I am satisfied that new section 347A which is inserted into the CYF act by the bill is compatible with the human rights as protected by the charter.

Police custody officer supervisors

Division 1 of part 4 of the bill creates a new category of police custody officer (PCO) known as a PCO supervisor. These provisions amend the Victoria Police Act 2013 to establish the role of a PCO supervisor and amends the Corrections Act 1986 to authorise PCO supervisors to perform certain duties. The bill also makes minor amendments to clarify the scope of PCO duties. PCOs are currently responsible for managing persons detained in police gaols (detained persons), including during their transport to court. The new PCO supervisors will manage a team of PCOs and perform supervisory and oversight duties at or in connection with police gaols. The bill provides for the Chief Commissioner of Police to authorise a Victoria Police employee to act as a PCO supervisor.

The bill extends to PCO supervisors a number of existing statutory powers which relate to custody management, including powers relating to the management of visitors in police gaols, the restraining of detained persons, searches in police gaols, and the direction of transportation and supervision of persons. These powers are currently exercisable by officers in charge of police gaols (officers in charge). A PCO supervisor also has all of the functions, duties and powers of a PCO under various acts as specified in the bill.

The bill does not introduce any new PCO powers and in this sense does not engage any charter rights. However, to the extent that the existing powers that are now extended to PCO supervisors engage rights, in my view they are compatible with the charter. The human rights issues associated with these powers were considered in detail in the statement of compatibility accompanying the Justice Legislation Amendment (Police Custody Officers) Act 2015, which inserted these powers into the Corrections Act or extended them to PCOs. That statement of compatibility concluded that these powers were compatible with the human rights protected by the charter. Furthermore, the bill creates an additional safeguard for the exercise by PCO supervisors of the powers of an officer in charge. The officer in charge may overturn a decision or order of a PCO supervisor in the exercise of such a power and decide the matter themselves. As a consequence, and in light of the safeguards provided by the bill, the Corrections Act and the Victoria Police Act, it is my view that the bill's establishment of the role of a PCO supervisor and the other clarifying provisions in relation to PCOs are compatible with human rights.

Conclusion

In my opinion, the majority of this bill is compatible with the charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society. However, I have concluded that the bill is incompatible with the charter to the extent that it limits rights under sections 13(a) and 17(2) in providing powers for PSOs to randomly search persons (including children) and vehicles in public places within designated areas, even if the PSOs have not formed a reasonable suspicion that the person or vehicle is carrying a weapon. The government intends to proceed with the legislation in its current form as there is considerable concern about community safety in relation to patterns of weapons-related offending, with which these amendments are concerned.

The Hon. Gayle Tierney, MP
Minister for Corrections