I rise to speak on the Summary Offences and Sentencing Amendment Bill 2013, and I reiterate that the opposition will not be supporting this bill. It is not supporting it on a number of grounds but the key principle is that we believe this is a tool to undermine the democratic principles we have learnt to love and hold onto tightly not just as individuals but as communities. That has been done that across the world for many years.
One only needs to look at a number of comments people in public life have made over the years.
One of those people was Thomas Jefferson, and I start my contribution by referring to a comment he made. He said:
- I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.
Benjamin Franklin was also a very strong advocate of democratic rights and making sure that they were not eroded. He said:
- Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
In terms of the technicalities of what is before us late this afternoon, we have a bill that has been colloquially described as the move-on bill.
It is called that because it provides the power for police to move on and exclude people from public places. The current legislation allows police to move people on if they are breaching the peace, endangering the safety of another or their behaviour is likely to cause injury, damage property or is otherwise a risk to public safety.
There are currently exceptions to these move-on powers in circumstances where people are picketing a place of employment, demonstrating or protesting or where their behaviour is intended to publicise their view about a particular issue. This bill will amend those exceptions so that people protesting are able to be moved on by police in specified circumstances, excluding a breach of peace. The courts will also be empowered to make orders excluding people from a public place where a person has been repeatedly directed to move on and the exclusion order would be a reasonable means of preventing them from continuing with the behaviour that led to the direction to move on. These exclusion orders will prohibit entry into the specified public space for up to 12 months. If the orders are contravened, the person can be charged. I believe that is a deliberate attempt to make sure there is no ongoing campaign or protest about a particular issue that citizens might be concerned about.
The alcohol exclusion clauses in the bill are the other aspect of what we have before us tonight. The bill amends the Sentencing Act 1991 to establish alcohol-exclusion orders for people committing relevant offences under the influence of alcohol. The amendment will require the court to make mandatory alcohol-exclusion orders where a person is convicted of a relevant offence and the court is satisfied that the offender was intoxicated at the time and that the intoxication significantly contributed to the offending.
An alcohol-exclusion order will operate for a period of two years and during that time will completely prevent the offender from entering or remaining on licensed premises. This includes nightclubs, bars, restaurants, cafes and function centres.
It is clear that this bill attempts to address two complex community issues — alcohol-fuelled violence and behaviour risking public safety. These issues would be far better served in separate bills with the appropriate consultation and attention afforded to each. The opposition intends to make its position clear, which is that this bill unnecessarily impedes human rights related to freedom of expression, peaceful assembly and movement in a public place. The alcohol-exclusion orders in part 3 of the bill are not opposed, although they should be removed from the amendments to the Summary Offences Act which are adamantly opposed.
The Scrutiny of Acts and Regulations Committee (SARC) received 10 submissions regarding this bill, including from the Law Institute of Victoria, the Victorian Trades Hall Council, the Victorian Council of Social Services and the Victorian Equal Opportunity and Human Rights Commission. The main concerns conveyed in those submissions to SARC were the bill’s contradiction of human rights; the broad discretion to be afforded to police; the potential for discriminatory use of the new powers to impact on vulnerable people, including homeless and Indigenous people and those suffering from mental health, drug and alcohol issues; and the government’s failure to adequately consult on a range of different problems with different community groups associated with this bill.
The discretionary nature of the provisions in this bill and the way police are able to apply the new move-on powers is of concern. There is a real fear that in policing public spaces young, Indigenous and homeless people will be the most affected.
These groups within the community are more typically living, socialising and moving in public places. The potentially disproportionate action towards vulnerable groups would see an increase in their contact with the criminal justice system, contributing to the already existing problem of overrepresentation, especially in the Indigenous community.
Labor also opposes this bill because we believe it simply will not work. You only have to look at the Queensland experience to know this. In June 2006 the Queensland government expanded its move-on powers to all public places with an exemption for peaceful assemblies under the Peaceful Assembly Act 1992.
The Queensland Crime and Misconduct Commission reviewed the use of these move-on powers in its report dated December 2010.
The report found that the vast majority of people moved on were young people between the ages of 17 and 24; that juveniles were not being diverted from the criminal justice system, with two-thirds either being given a notice to appear in court, at 42 per cent, or being arrested, at 30 per cent; that Indigenous people were significantly more likely to receive a move-on direction than non-Indigenous people and were 20 times more likely to be given a recorded move-on direction; and that Indigenous people were also more likely to be charged only with disobeying a move-on direction and with no other associated criminal offences. This suggests more people are being unnecessarily drawn into the criminal justice system.
The Crime and Misconduct Commission also warned that there needs to be a strong connection between the scope and duration of a move-on direction and the conduct giving rise to it. In other words, the restriction imposed on people should not be disproportionate to the behaviour that supposedly led to the direction.
The opposition also has concerns about the application of the direction to move on, because the bill provides that police may give direction to an entire group to move on, without being required to directly inform each person to move on. Police will then be able to arrest anyone who does not obey the move-on direction, despite the direction having been given to the group and not to each individual. There is obviously the potential for people to be arrested for failing to follow a direction that was not communicated to them. Criminal charges will follow, along with potential exclusion orders at the discretion of the court.
The bill also creates a new alcohol-exclusion order scheme which, it is important to note, the opposition is not opposed to. On application by police, the court must make an alcohol-exclusion order upon convicting an offender after being satisfied that they were intoxicated at the time and that this significantly contributed to their offending. For two years the offender will be entirely prohibited from entering or remaining at a host of licensed venues, including restaurants and cafes.
This is clearly a severe restriction on a person’s movement and it will control their life for an extended period. This restriction has not been justified, especially in light of the court not being afforded discretion to make the order with a consideration of the circumstances, which could include the nature and seriousness of the offence.
The bill does not specify the offences that can attract an alcohol-exclusion order; it only defines the relevant offences as a range of offences under the Crimes Act 1958, listing some examples and including the common-law offences of murder and manslaughter.
In conclusion, this bill’s restriction on human rights cannot be justified by the government, which is seeking to conveniently restrict expression by Victorians without adequate consultation or consideration of the impact the bill will have on vulnerable people. The findings in Queensland tell us that we can expect young people, homeless people and Indigenous people to be those most affected by the expansion of move-on powers.
The government claims the new powers are aimed at low-level street drug dealing and at breaking up gangs that engage in criminal offending, but the bill does not restrict the expansion of the powers to those problem areas.
In fact it clearly amends the exemptions that currently allow people to exercise freedom of expression without being moved on, arrested, charged and excluded. Existing legislative provisions afford police ample powers to ensure public safety without impacting on human rights. Those who engage in criminal behaviour such as assault or endangering the safety of others are already subject to criminal charges, whether or not the conduct occurs while protesting.
The opposition sees this bill as the government’s attempt to stifle the public’s negative views that have developed as a result of community opposition to what has occurred in Victoria over the last three years. The opposition values human rights, but this bill contradicts them. We believe this bill is simply wrong, and we have made a commitment, if elected in November, that we will repeal this bill. In the words of Noam Chomsky:
- If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.