PILCH Matters, December 2009
- Deborah Liebhaber, HPLC Volunteer, 14 December 2024
It seems to be a case of history repeating, as the Victorian government last week passed the Summary Offences and Control of Weapons Acts Amendment Bill 2009 (Bill), which provides police with increased and largely unrestrained search and directive powers, including random searches, move-on powers and stricter penalty and arrest powers.
The new police powers will breach human rights, given that the exercise of the powers will be based on subjective predictions of possible future behaviour by individual police officers, and the test for the exercise of the powers is broad, vague and arbitrary. This creates the danger that the powers could be applied in a discriminatory and disproportionate way, thus limiting Victorians’ human rights under the Charter of Human Rights and Responsibilities. Indeed, in introducing the legislation into Parliament, the Government has conceded that the Bill is incompatible with Victorians’ human rights, and are unjustifiable, disproportionate and unreasonable at law – but the powers have been introduced anyway!
Manoeuvred into Parliament as a populist ‘tough on crime’ strategy in responding to the public outcry over the perceived recent rise in alcohol-influenced and weapon-related street violence, this is not the first example of misguided legislative showmanship to have been adopted by a State government. Looking back a decade, NSW enacted the Crimes Legislation Amendment (Police and Public Safety) Act 1998, which outlined almost parallel measures.
In the NSW Ombudsman’s 1999 report on the NSW Act, increased police powers were found to have lead to illegitimate discrimination. The report presented statistics indicating that only one in every five weapon searches carried out by police actually produced a weapon, revealing the risk that such powers are over-applied and abused. Considering the highly subjective and vague safeguard requirement in the proposed Victorian legislation, which merely requires reasonable suspicion that the person may pose a danger, the scope for abuse of new police powers in Victoria is a very real concern.
Furthermore, the NSW Ombudsman’s report found that whilst “people from 15 to 19 years of age are much more likely to be stopped and searched… the proportion of productive searches is comparatively low for teenage suspects” (at 1.40). This reflects the inevitable discriminatory function of such laws, which disproportionately target young people, Aboriginal Australians and people experiencing homelessness, whom the report acknowledged as receiving the majority of police move-on directions.
This finding is mirrored in a recent survey by the Queensland Public Interest Law Clearing House (QPILCH), which found that 76.5% of surveyed Queenslanders experiencing homelessness had been told to ‘move on’ one or more times in the last six months, under the controversial Police Powers and Responsibilities Act 2000 (Qld). With no secure housing, homeless Australians are forced to carry out basic daily living activities in public spaces, unduly exposing them to liability under such legislation.
Such discriminatory measures infringe upon many human rights as recognised by the Victorian Charter of Human Rights and Responsibilities, such as freedom of movement, association and expression.
A report by Queensland Legal Aid states that there is “no evidence that move on powers would lead to any reduction in public nuisance and other street offences” (p.8) from either domestic or international sources. Rather, 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. Thus, such policies only serve to sideline more pressing social issues, such as the need to address urban poverty and current mental health approaches.
The PILCH Homeless Persons’ Legal Clinic (HPLC) advocates a community-oriented solution that more narrowly targets the problem of alcohol-fuelled violence, that is informed by experienced community groups, not politicians out to score cheap points, and is founded upon evidence-based strategies. In her 1999 report, the NSW Ombudsman, relying on the recommendations of a National Crime Prevention study, endorsed a more developmental approach to crime prevention, as opposed to the current proposed coercive approach. A developmental approach involves diverting offenders away from anti-social or criminal behaviour through the provision of educational opportunities, inclusive community attitudes and social environments. Similarly, Victoria’s Chief Commissioner has rejected the need for increased police powers, and suggested that better planning and licensing laws would better protect people from alcohol-fuelled violence.
A more holistic approach to crime and community safety may not have the sensationalist appeal of ‘tough-on-crime’ political posturing, but it does stand as a more effective means of achieving community safety.