Police Powers

Since November 2009, two amending acts have been introduced by the Victorian government that drastically increases police powers to deal with public space ‘offenders’.

The Summary Offences and Control of Weapons Acts Amendment Act 2009 was introduced on 12 November 2009. This amendment:

• provides police with random search powers (including strip searches) in designated areas;
• gives police the power to direct people to move-on from a certain area;
• creates a new offence of ‘disorderly conduct’; and
• gives police power to impose fines and issue arrests for drunk or disorderly conduct.

These powers do not contain sufficient protections to ensure that the powers are exercised appropriately. Such broad police power has been introduced in other Australian states, and a 1999 NSW Ombudsman’s report found such laws to be largely misunderstood by police, who would often acted beyond the scope of the laws.

Additionally, there is a complete lack of empirical evidence, both domestically and internationally, demonstrating any correlation between the granting of these draconian police powers and reducing crime rates. In fact, available evidence suggests that such ‘zero tolerance’ policing methods tend to divert people to places without police presence or divert them into the commission of more serious crimes.

The HPLC warns that such policy will also prove to be discriminatory in effect. In particular, people experiencing homelessness will be targeted by this legislation since, without secure housing, many are forced to carry out basic daily living activities in public spaces. However, young community members, those suffering mental illness and indigenous people will also be disproportionately affected by this legislation.

The legislation threatens to contravene the human rights laid out in the Victorian Charter of Human Rights and Responsibilities (Charter) and international law, including freedom of movement, association and expression. Whilst the Charter permits human rights violations where it is proportionate and justified, the Government has conceded that the discretionary nature of the police powers granted and the severity of proposed penalties cannot be justified.

In January 2010 HPLC and PILCH staff observed a police search of 182 people at Footscray station. Twelve weapons, including a machete, were seized from seven people during the operation. Commenting on the outcome in the Sunday Age (May 16, 2024) James Farrell, manager of the Homeless Persons Legal Clinic, said he believed a number of those found with weapons may have had legitimate reasons for possessing them:

''The guy that had the machete also had his tent and swag in his backpack and obviously had been bush camping… Those are the types of things that aren't coming through in the information the police are putting out there.''

The Victorian Government made further amendments in August 2010 with the Control of Weapons Amendment Act 2010. This amending act is again inconsistent with Charter rights, as noted in the statement of incompatibility and introduces even more draconian measures, including:

• removing the requirement for an independent third person to assist young people or people with intellectual disabilities, instead requiring another police officer to be present;
• a penalty of 25 penalty units for a young person purchasing a prohibited weapon;
• removing the requirements for police to maintain records of the people searched, further clouding the already lackluster accountability measures;
• only requiring designation of searches for ‘events’ – now train stations and other public places will be subject to undesignated ‘surprise’ searches; and
• in determining the ‘likelihood’ of violence occurring, the test is now that the “likelihood is less than ‘more likely than not’.”  That means, an act of violence occurring is likely, even when it probably won’t happen.

The HPLC proposes an alternative plan of action in order to responsibly respond to criminal activity within the community that focuses on education, health and housing approaches.

HPLC is pleased to support the Smart Justice campaign, calling for smart, evidence-based policy responses to community safety and crime. To view the Smart Justice approach to reducing knife carrying and knife violence, see:

http://www.smartjustice.org.au/cb_pages/fs_reducing_knife_carrying_and.php

Related media

HPLC media releases