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Unions and Community Groups see democracy alert in Summary Offences and Sentencing Amendment Bill

Video inside of nearly 4000 Victorians protesting re this legislation on March 6, 2014. "We believe that this harsh legislation is completely unnecessary in a society which is continually being undermined and is struggling to maintain work and environmental standards. This legislation is a further and heavy blow to democracy placing ordinary citizens in a position of increased likelihood of coming up against the force of the law for simply using one of the few weapons left, the right to congregate to demonstrate a point." - Jill Quirk, Sustainable Population Australia This article includes an annotated first and second reading of the Bill, with links to speeches against it and to Human Rights legislation in Victoria.

Hon. Andrew Ronalds

Dear Mr. Ronalds,

I write on behalf of the Victorian and Tasmanian branch of Sustainable Population Australia. We are most alarmed by the prospect of the Summary Offences and Sentencing Amendment Bill being passed by the Upper House of State Parliament.

We believe that this harsh legislation is completely unnecessary in a society which is continually being undermined and is struggling to maintain work and environmental standards. This legislation is a further and heavy blow to democracy placing ordinary citizens in a position of increased likelihood of coming up against the force of the law for simply using one of the few weapons left, the right to congregate to demonstrate a point.

This is of importance to our group as we are fighting to stabilise the population and to preserve our environment for future generations. This has involved attending public rallies for environmental causes. Governments need to be made aware of strong public opinion. The right for people to do this is in the interests of our shared future.

Please help to keep our democracy and vote “NO” when this legislation arises in the Upper House.

Sincerely,

Jill Quirk, President , Sustainable Population Australia , Victorian and Tasmanian branch

P.O. Box 240 West Heidleberg 3081

vic@population.org.au
http://www.population.org.au

Speeches Against

Below are two speeches by Liberals arguing on behalf of the Bill. We have also published in another article, all the speeches we could find against the bill. Speeches against the Summary Offences and Sentencing Amendment Bill (Victorian Parliament)You should read these to see why this is a problematic bill. Two most powerful points that come across in the speeches below against the impending Act are that the Labor Party was willing to go along with the Act regarding greater powers for arresting people who are intoxicated and dangerous. A related motion to divide the Act into two was unfortunately defeated. The Liberal Party lawmakers were accused of rolling this one reasonable change together with an unreasonable change to the Sentencing Act. The Second powerful point against the impending Act was that it is designed to stop unions from impeding the hiring of scab labour. This seems to be true. Given that Workers' Conditions have been eroded since the Howard Government in conjunction with vast increases in numbers of worker immigrants, this question of scab labour is bound to come up more frequently and desperately in Victoria, as businesses close down, cost of living rises (power, housing, water etc) and employers seek to drive wages down. The Liberal Members response to this last point was to use arcane theoretical examples, such as pretending that those against the Act would be wanting to allow people to stop members of the public from buying chocolates from shopkeepers they did not like. Go here to read the speeches against the Bill and to see who voted for it or against it.

SUMMARY OFFENCES AND SENTENCING AMENDMENT BILL 2013

Introduction and first reading

[Parliamentary Source]
Received from Assembly.

Read first time for Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) on motion of Hon. G. K. Rich-Phillips; by leave, ordered to be read second time forthwith.

Statement of compatibility

For Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation), Hon. G. K. Rich-Phillips 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'), [Available here as a word doc and as a pdf file] 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 Council, is compatible with human rights as set out in the charter act. [CDB Editor: The clickable link gives you access to an extract of the actual 'rights'.] 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),

["15. Freedom of expression

(1) Every person has the right to hold an opinion

without interference.

(2) Every person has the right to freedom of

expression which includes the freedom to seek,

receive and impart information and ideas of all

kinds, whether within or outside Victoria and

whether—

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to

the right of freedom of expression and the right

may be subject to lawful restrictions reasonably

necessary—

(a) to respect the rights and reputation of other

persons; or

(b) for the protection of national security, public

order, public health or public morality."

]

and peaceful assembly and freedom of association (section 16).

["16. Peaceful assembly and freedom of association

(1) Every person has the right of peaceful assembly.

(2) Every person has the right to freedom of

association with others, including the right to form

and join trade unions."

]

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.

["7. Human rights—what they are and when they may
be limited

(1) This Part sets out the human rights that Parliament
specifically seeks to protect and promote.

(2) A human right may be subject under law only to
such reasonable limits as can be demonstrably
justified in a free and democratic society based on
human dignity, equality and freedom, and taking
into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the
limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and
its purpose; and
(e) any less restrictive means reasonably
available to achieve the purpose that the
limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or
public authority a right to limit (to a greater extent
than is provided for in this Charter) or destroy the
human rights of any person."]

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

Page 477

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 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.

Edward O'Donohue, MLC

Minister for Liquor and Gaming Regulation

Minister for Corrections

Minister for Crime Prevention

Second reading

[Parliamentary Source]
Ordered that second-reading speech be incorporated into Hansard on motion of Hon. G. K. RICH-PHILLIPS (Assistant Treasurer).

Page 478

Hon. G. K. RICH-PHILLIPS (Assistant Treasurer) -- I move:

That the bill be now read a second time.

Incorporated speech as follows:

This bill makes important changes to the law to better protect the community from lawless behaviour on our streets and to deter and prevent alcohol-fuelled violence.

First, the bill amends the Summary Offences Act to give police clearer and more effective move-on powers and to create longer lasting exclusion orders.

Secondly, the bill delivers the government's election commitment to ban those convicted of alcohol-fuelled violence from licensed premises for two years.

Clearer and more effective move-on powers

Move-on powers provide police and PSOs with a useful tool for safeguarding the peaceful enjoyment of public spaces by all, as well as defusing situations that threaten public order and safety. Police and PSOs are currently able to direct people to move on from public places for a range of reasons. These include where they reasonably suspect that a person is breaching or is likely to breach the peace, or is endangering or is likely to endanger the safety of another.

The bill provides further grounds on which these powers may be used. Police and PSOs will be able to direct a person to move on from a public place if they suspect on reasonable grounds that a person:

has committed an offence in the place;

is causing a reasonable apprehension of violence to another person;

is causing, or is likely to cause, an unreasonable obstruction to others;

is present for the purpose of procuring or supplying drugs; or

is impeding, or attempting to impede, another person from lawfully entering or leaving premises or part of premises.

These new grounds will provide greater certainty for police members and PSOs as to when they may exercise move-on powers, and expand the range of circumstances in which such directions may be given.

Move-on powers may be applied in relation to one person or many.

The bill clarifies that police and PSOs may give one direction to an entire group rather than having individually to direct each person in the group to move on.

The bill continues to protect legitimate rights to lawful protest or demonstration, but it makes clear that if protesters go beyond legitimate expression of views and instead resort to threats of violence or seek to impede the rights of others to lawfully enter or leave premises, police will have the power to order those protesters to move on.

To this end, the bill provides that move-on powers may be used in respect of people engaged in picket lines, protests and other demonstrations. However, the existing ground relating to breach of peace and the new unreasonable obstruction ground will not apply in those situations.

These grounds are excluded because of the scope for dispute about their application in the context of demonstrations. Police will instead be able to rely on the impeding access ground and other grounds to deal with protesters who blockade or otherwise impede access to or from premises or who resort to threats of violence or to illegal conduct.

The bill will also improve the enforcement of move-on directions. For example, the bill expressly provides that police and PSOs may arrest a person who contravenes a move-on direction. The bill also assists the detection of such contraventions by providing that police may require a person being directed to move on to provide their name and address. Currently, police are unable to do this in many cases, making it difficult to detect contraventions of the move-on directions where the person returns a few hours later. This change will also enable police to keep a record of people who are repeatedly moved on.

Move-on-related exclusion orders

Move-on powers can keep a person away from a public place for up to 24 hours, but no more. Consequently, a person may return to the place and engage in the same conduct the very next day. This can be a particular issue where police know that people are returning to a certain area repeatedly, such as for the purpose of buying or selling drugs.

The bill addresses these situations by enabling police to apply to the Magistrates Court for an exclusion order against an individual.

The making of an exclusion order will be discretionary, and the court may only make an order if it is satisfied that:

a person has been repeatedly directed to move on from the same public place or part of a public place; and

an exclusion 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.

If a court decides to make an exclusion order, it can specify a duration of up to 12 months. During that time a person will be prohibited from entering the public place specified in the order. However, the bill does allow the court to create conditions allowing a person to enter the place if there is a good reason for doing so and the court considers it appropriate in all the circumstances.

Once an exclusion order is in place, it will be an offence to contravene that order. The offence will carry a maximum penalty of two years imprisonment.

These exclusion orders will give police a new tool for addressing low-level street drug dealing and for breaking up gangs that gather in public places to threaten people or engage in criminal behaviour.

Alcohol-exclusion orders

The government made an election commitment to ban those found guilty of committing a violent offence while under the influence of alcohol from licensed premises for two years.

Page 479

This bill makes amendments to the Sentencing Act 1991 to give effect to that commitment.

A high proportion of violent behaviour is caused by people who have had too much to drink. These measures will better protect the public from the recurrence of such behaviour and create a strong deterrent to the offender and to others.

Under the requirements, a court must make an alcohol-exclusion order where it is satisfied that:

a person has been convicted of a relevant offence;

the person was intoxicated at the time of the assault; and

the person's intoxication significantly contributed to the commission of the offence.

These orders will apply to most indictable offences against the person, ranging from homicides to intentionally causing injury, as well as to sexual assaults such as rape or indecent assault, and to offences such as threats to kill and assaulting police.

Alcohol-exclusion orders will prohibit the offender from entering specified licensed premises or consuming liquor in any licensed premises anywhere in Victoria for a period of two years. Where an offender goes to jail for their offence, the exclusion will apply from the time they are released from jail. Where an offender is sentenced to a community correction order of longer than two years, the court will be able to impose alcohol treatment conditions that will continue to operate after expiry of the alcohol-exclusion order.

The licensed premises from which persons are excluded are the same as those covered by alcohol-exclusion conditions made under a community correction order pursuant to section 48J of the Sentencing Act 1991. These include nightclubs and bars -- including pubs -- as well as licensed restaurants and cafes. Bar areas of other licensed premises will also be covered, including hotel bars and bars at sporting grounds and clubs. A person is also prohibited from entering major events covered by a relevant liquor license, such as the formula one grand prix.

Provision is made for the court on application to vary the exclusion conditions in circumstances where that is justified, such as where a person lives above licensed premises or works at licensed premises. A court may also allow a person to enter licensed premises for a specified purpose if there is a good reason and the court considers it appropriate. However, the courts cannot allow a person to drink on those premises.

Contravention of an alcohol-exclusion order will be an offence, carrying a maximum penalty of two years imprisonment.

Alcohol-exclusion orders will send a clear message that drunken, violent behaviour will not be tolerated in Victoria and that those who engage in it will face significant consequences for their personal and social life, in addition to whatever other sentence they receive.

I commend the bill to the house.

Debate adjourned on motion of Ms MIKAKOS (Northern Metropolitan).

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