Summary Offences (Declared Public Precincts) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:01): I rise to speak on the Summary Offences (Declared Public Precincts) Amendment Bill 2016 and indicate that the opposition has considered the bill and we are supportive of the advancement of the two initiatives in this bill.

The first initiative is to allow the police to remove children from a declared public precinct, using the powers of removal under the Children’s Protection Act, if the child is, in the opinion of an officer, in a situation of serious danger. The second initiative is to allow police to order a person or a group of people to leave a precinct if the police officer believes, or apprehends on reasonable grounds, that an offence of a kind that may pose a risk to the public order and safety has been or is about to be committed, or the presence of a person or group of persons poses a risk to public order and safety. A person who remains or who re-enters or attempts to re-enter during the declared period can be charged with an offence, with a $1,250 fine.

The bill itself implements a procedure where the Attorney-General, either on his or her own motion or on the recommendation of the Commissioner of Police, can declare an area a public precinct for a specified period of time. Essentially, it is proposed that this is to deal with events and places where there is reasonable likelihood, presumably in the mind of the Attorney-General, that conduct occurring in that area would pose a risk to public health and safety. It is also a regime proposed in this bill that such declaration would not be longer than 12 hours in any 24-hour period; essentially, it is consistent with covering significant events.

The other provisions of this bill I will come to in a moment, but can I say this: it is a matter of concern that there should be a declaration of a public precinct to be made on the determination of an attorney-general on his or her own motion.

For all of the matters that I raised regarding the necessity for this process, it seems that if it is to be confined to main events and the likelihood of there being a problem that needs to be addressed as a potential risk to public health and safety, then surely a declaratory process should only be in a circumstance where it is on the recommendation of the Commissioner of Police. There has been no example presented to the opposition which would suggest that this should be something that is entirely in the hands of the Attorney-General.

That said, with the agreement to allow for declared precincts and the amendments of the law, firstly to impose the penalty that has been referred to, which will facilitate a moving on procedure at and around these events, and secondly to enhance the protection under the Children's Protection Act for the protection of children, that is, enabling them to be removed, the opposition has a number of concerns.

We will look at this question of restricting the declaratory process being acted upon by the Attorney-General, currently to be allowed on his or her own motion, to circumstances where the police commissioner must recommend it. We will consider some of these other initiatives, but at present we are not inclined to support them. Obviously, the bill will traverse this house, and we will look at some other matters in the other place.

We remain awaiting some response in respect of stakeholders whom we consider ought to have an opportunity to present their views. Can I say that, in general terms, this regime of declaratory precincts, from which there are a number of proposed offences, barring orders and upgrading of the dealing of offensive weapons and use of metal detectors, is totally unique to South Australia. This whole process does not operate anywhere else in the country. It is a regime which is presented as being similar to the rules that apply around a licensed premises, and to that extent that is right.

We have very tight rules in South Australia, and indeed in other jurisdictions, in and around a licensed premises—this is for the purpose of selling alcohol; it is hotels, Adelaide Oval, and any other place that has a licence to sell alcohol. There are very strict rules which enable people to be removed, which enable them to be barred from entering those premises and indeed the immediate location, which prevent them from carrying offensive weapons, and of course subject to being detained, etc.

This regime is being expanded, I suppose, which the government suggests will be important for the management of persons who might be thinking about causing some trouble at an event, under the auspices of protecting others who want to have reasonable enjoyment of these events or activities within that precinct. That is not an objective that we would take issue with. It is obviously important to try to make sure, as best as possible, that when large crowds gather, whether they are watching a local cricket game or whether they are enjoying a barbecue or celebrating a certain event—New Year's Eve, major victories of sporting events, all those types of things—the people who are attending that event are safe and are protected against the unruly, offensive or illegal conduct of others. We say, however, that there appears to be no immediate justification for this.

Secondly, a number of issues have been raised by stakeholders who have had a chance to make a comment on this and, in particular, about how imposing this new regime may adversely and disproportionately impact on young people. Let me just look at the areas of concern: one is to allow police to bar a person from entering or remaining in the precinct if the person commits an offence of a kind that may pose a risk or, of course, behaves in an offensive or disorderly manner, and the capacity for the officer to choose to bar that person from entering any other declared public precinct specified in the order. So, it is quite extensive. It is not just to be barred from that precinct itself, but it could be all other areas that are under declaration at that time.

Secondly, they can serve an expiation notice on a person behaving in an offensive or disorderly manner, and this obviously adds to the lightening of the load for police officers. Thirdly, it makes it an offence to carry an offensive weapon or dangerous article in a declared public precinct without lawful excuse—$10,000 or two years imprisonment—as an aggravated offence, similar to what we have around licensed premises. Finally, it will allow police to carry out metal detection searches and general drug detection searches on a person who is in a declared public precinct.

In this area we have just had a most exhaustive debate in respect of biometric testing, which is fingerprinting, and the desire of the police, who apparently have been the requesting party for this regime, for the government to progress this, and the parliament has rejected a circumstance where there is a proposal to introduce a legal process of excluding people or requiring them to submit to, in that case, fingerprinting, when they are just walking around doing their normal things. The parliament has said that is just not acceptable. There needs to be certain circumstances where people can be bailed up, held up, searched and, of course, then excluded from an area, which is the part of this regime that we are happy to present.

It is also important to remember that a lot of the areas that have been presented to us—major events (like at Adelaide Oval, for example), Hindley Street, Glenelg (which is a popular place on Christmas Eve, New Year's Eve and major occasions such as that), and major cultural festivals (which are sometimes held in beach areas where they attract a large crowd of people)—are frequently the subject of liquor licensing permits to be able to sell liquor for the event, or indeed within those locations are licensed premises, including hotels, restaurants and other outlets, that already attract a very substantial regime of powers to the police as a result of their being licensed premises within those precincts.

I do not know how many licensed premises there are in Hindley Street, but there would have to be a lot—20, 30, 40, I do not know, but a lot. It would be most of them, all the way along the street; you would probably have to count on one hand those that do not have a liquor licence, perhaps a dress shop or something of that nature. But, they are prolific in those precincts and, frankly, no justification has been put to us at this point that suggests that these are necessary.

The government briefing provided on this matter suggested that it was not necessary for this bill to go out to consultation directly to stakeholders, including the AHA (Australian Hotels Association). When we inquired (as we would) as to why there had not been a widespread consultation on this, the answer was that in March the Attorney-General put this on his website, and there was a press release. I did not read the press release, but there was certainly a bit of print media on this announcement that the government was considering introducing a new regime for event precincts as 'declared public precincts'.

It is possible that people who have an interest in this matter would have a practice (or someone in their organisation) of regularly sitting on the website of the Attorney-General and checking out what he is doing each day. I do not even do that, and I am the shadow attorney-general. He can be relieved to know that I do not sit and read all of the things he puts on his website every day, and I have a job specifically to shadow what he does. Of course, some of those things are pretty irrelevant, or peripheral and, frankly, are not worthy of looking at. But some of them are important, and mostly, when we make laws in this place, they affect someone's life, and they do require some consultation with the people whom they are most likely to affect.

As it turns out, when this idea was announced on the website the Youth Affairs Council of South Australia picked it up, and they provided a submission in April this year. Consistent with a number of other submissions, they rightly point out that the police already have considerable powers to deal with someone who is in a place of either committing an offence, or there is the likelihood of someone who, on reasonable grounds, is going to cause some disruption and/or commit a direct offence.

This point has been made to highlight that they already have summary offences that they can act upon and certain powers to deal with them, but they do not specifically have an offence that they can call upon to require that they move on that suspicion. That is something that we do not dispute. As I say, we are prepared to agree to that on the basis that it is probably reasonable in the circumstance.

Someone recently raised with me an interesting point on this review of the law and what is being proposed. That person is now in the military, but he indicated that he had previously been in a police force in Australia. Commonly, if they had a problem with young people—usually in a group causing some trouble, or looking for a bit of trouble—they would announce to the group that they would be doing a quick warrant search. That usually had the effect of dispersing them very quickly.

Sometimes, we change things on the basis that it is going to introduce a better reform, and we throw out good things with the bad things. Nevertheless, we are satisfied that at least the police ought to be able—if they have reasonable belief in relation to this—to ask that person to move on. We are agreeable to that. What we are not agreeable to is introducing new offences and barring orders which are completely unnecessary and which will target young people. In respect of the Youth Affairs Council of South Australia, they said:

YACSA contends that the police already have extensive powers to intervene where young people may be involved in offending behaviour or likely to become involved in offending behaviour, and to call in care and protection authorities as necessary.

We are particularly concerned about the potential for young people under the age of 16 (whom we believe have the right to access public space) attracting unnecessary attention and contact with police and other authorities, particularly those who choose to access public space without their parents being present.

YACSA believes that young people have the right and should be free to exercise the right to access public space in South Australia. This includes public space in the city which includes parks, parklands, meeting areas, and Adelaide's five Squares. As such we do not support any legislation that has the potential to disproportionately impact upon young people.

Unsurprisingly, that submission was supported by the Aboriginal Legal Rights Movement. I will not traverse the detail that they have outlined, but it is a similar concern. The Law Society of South Australia made comments in April this year in response to the invitation to make a contribution.

The Hon. J.R. Rau: They must have found it on the website.

Ms CHAPMAN: I think they were actually at least alerted to it. They made it quite clear that they considered that there were adequate safeguards under our current legislation. They went so far as to say that it was unnecessary to even have a power to request a person to leave a declared public precinct. As I said, we are not satisfied that there is necessarily a major problem out there, but we are prepared to agree to that extent.

The Children and Law Committee and the Aboriginal Issues Committee both considered the proposed bill and confirmed their objection to the same. In respect of young people experiencing homelessness or other forms of social disadvantage or marginalisation, they made the point that:

31. For many young people, being taken home by police is no safer than being permitted to remain in the declared public precinct where they can access services supports and their homeless peer group for support.

32. Young people in a state of primary homelessness tend to use the city as a safe place to stay awake and away from the deeply fractured environment of home rather than sleep rough. They then access specialist youth and homelessness support services upon opening in the morning; services such as Streetlink and Trace-A-Place.

33. Proposed [section] 66R would have a negative impact on the cohort of young people. In addition, many of these young people are declared to be independent of Centrelink and in receipt of the Unreasonable to Live At Home Allowance (UTLAH). UTLAH may be granted to young people aged 15 or over. In this instance, a young person is their own legal guardian and are not required to have a 'guardian' present as suggested by the proposed [section] 66R(1)(a).

34. If Police are to take children and young people removed from the declared public precinct home, we suggest that there must be accompanying support to the families of these young people.

35. Support is critical to assist families to begin to address the factors that led to their children and young people leaving in the first place. Simply taking them back home does nothing to address these reasons and may continue to place children in situations of (hidden) harm within the family home.

Quite possibly, the provisions under the Children's Protection Act that compete with this are already adequate, which does raise the question about the proposal, in any event, to allow police to remove children from a declared public precinct. Probably, under the Child Protection's Act, they have other powers to be able to deal with that in any event. Nevertheless, again on the abundance of caution, we are prepared to tighten child protection law if that is deemed necessary.

However, it does raise the question, doesn't it, when governments decide they want to look like they are tough in dealing with public disorder and purport to be out there protecting the public at large by imposing a web of obligations and restrictions on all those other law-abiding people in those premises, who can be searched and have metal detectors run over them, be unable to re-enter a premises, be barred from a precinct and/or have an expiation notice issued on them and also have massive extra penalties in respect of weapons.

I just highlight the fact that there are very strict laws already in respect of carrying weapons. This legislation has been in place for some time. I can recall there being a very strong and strict upgrade of carrying offensive weapons after the tragic knifing death on Grenfell Street of a young man by another young man. So, the law has responded, and we supported the government to ensure that we have strict laws in relation to the upgrade of that. But here we are talking about treating a public event, under the declaration of the Attorney, at his own whim if he wishes to, purportedly to protect others.

The Chair of the SA Council for Civil Liberties, Ms Claire O'Connor, was reported in the newspaper as being supportive of these amendments and the reforms that had been announced by the government. The Attorney puts his hands up in horror here as though in some way he has reported—this is a report that is in the media suggesting that there has been support for these amendments. On inquiry with Ms O'Connor, her position is that, while she agrees with the enhancement of child protection and the moving-on provisions, which is consistent with what the opposition is promulgating here today, she does not support the other proposals by the government in this legislation, and she made that very clear.

Obviously, she understands, given her professional work as a barrister and her history in respect of civil liberties, the importance of protecting young people against what will be an unnecessary restriction on them and potentially bring them into a regime in which there will be a disproportionate impact on them. With that contribution, I indicate that we accept that the bill will be passed in this place. There has been no other demonstrable information presented to us as to why we would otherwise support these proposals. We will review the question of the declaration process being initiated by the Attorney of his own motion in another place.