Summary Offences (Declared Public Precincts) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2016.)

The Hon. M.C. PARNELL (15:38): I rise briefly to speak to this bill today. One of the reasons that I do not propose to take a lot of time dealing with this bill is that I am pleased to associate myself with the remarks of my colleague the Hon. Andrew McLachlan who, in a comprehensive contribution on 18 October, set out most of the issues that concerned the Greens. He read onto the record the submissions that we would have read if he had not done so.

I also note that the honourable member posed a large number of very important questions. On my count there are 20 questions that he posed. These are also questions that the Greens need answered, and we look forward to the minister doing so. We would like the minister to answer them at the conclusion of the second reading because, whilst I have associated myself with the comments of the honourable member, we reach a slightly different conclusion. The opposition will be supporting this bill going through past the second reading, while the Greens believe that it has so little merit that we will be opposing it at the second reading.

The questions that the honourable member asked are sensible, and the submissions that he referred to are absolutely telling in the story they provide about what is wrong with this bill. The submissions I refer to are from the Law Society, the Youth Affairs Council and the Aboriginal Legal Rights Movement. If there is anything that those submissions have in common, it is how poorly thought through this legislation is. There are a large number of potentially unintended consequences, and that is on top of the scope for abuse that exists in the broad-ranging powers that the bill provides.

One of the unintended consequences that I think sums up pretty well how poorly thought through this bill is was in some notes from the Law Society that referred to the fact that there are a number of young people who come from very difficult backgrounds. They are effectively homeless, and they are regarded by the state as people for whom it is inappropriate to live at home.

These young people are in receipt of an allowance referred to as the 'unreasonable to live at home' allowance, yet the bill, as drafted, would have these minors caught in a declared precinct potentially being removed from that precinct with the suggestion that they should go home. Well, they do not have homes to go to in some instances. That is just one example of the many that are contained in the submissions of the Law Society, Youth Affairs Council and Aboriginal Legal Rights Movement.

Whilst the Greens look forward to the answers that the minister will hopefully provide at the conclusion of the second reading, unless it appears that there has been a colossal misunderstanding on our part in terms of the clear language of the legislation, I can see no way that the Greens are likely to support this bill at the second reading or beyond; therefore, we are opposing this legislation.

The Hon. G.E. GAGO (15:43): I rise on behalf of the government to support the Summary Offences (Declared Public Precincts) Amendment Bill. In short, this bill seeks to extend the powers that police officers have when dealing with people in licensed premises in order to ensure greater safety and enjoyment of our nightlife here in Adelaide.

The bill ensures that police will have a greater ability to control people in certain entertainment precincts which are declared by the Attorney-General. This is an important element of the bill, and it ensures that it is not a carte blanche extension of police power but merely an acknowledgement of the necessity for greater vigilance in high-risk areas. In his speech in the other place, the Attorney referenced precincts such as Hindley Street on Friday and Saturday nights as potentially being subject to declaration.

During my time in this place, I have worked as the minister for consumer and business services in the past, so I am very well aware of the high concentration of licensed venues within this precinct, and I am certainly well aware of the challenges that SAPOL face in policing those areas. I had many discussions with SAPOL representatives at the time on issues to do with violence, drunken and drug-fuelled episodes and generally bad behaviour, and the impact that that has on ordinary people who want to go along and have a night out and enjoy themselves, and how that sort of behaviour interferes with people's sense of enjoyment and also safety. The vast majority of patrons are obviously there to simply enjoy themselves but, as is far too often the case, there are a few, just that handful, that can ruin the enjoyment of the many.

To extend SAPOL's power to the areas surrounding these venues is a sensible and logical extension of these powers. What it means is that SAPOL will have the necessary powers to quickly and effectively defuse potentially volatile situations, which may be as simple as moving people on so that large crowds are able to disperse and tempers calm down. This will create an environment for those who wish to go out and have fun and enjoy the entertainment in those areas to be able to do so without fear of violence around them.

There are a number of reforms that I had some responsibility for a number of years ago and I know that those reforms had a significant impact on helping to decrease some of the alcohol and drug-fuelled bad behaviour. I think this government has shown that it is committed to continuing to assist with that problem and to working with stakeholders to ensure that we do even better again.

The government is committed to creating a safe environment for all South Australians and this includes creating a safe drinking culture. These laws will only impact people who are looking to go into entertainment precincts to cause trouble. Law-abiding citizens and people simply looking to have fun and a safe night out will not be in any way disadvantaged by these laws. On the contrary, this law will support and assist those who wish to enjoy entertainment, culture and, obviously, the excellent brews and vintages available from the fine venues that we have in Adelaide.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (15:47): I think everybody who wishes to contribute has already done so, so I rise to close the debate. In doing so, I thank honourable members who have contributed to the debate on this bill. As has been pointed out, the bill seeks to give police enhanced powers to effectively manage disorderly behaviour in declared public precincts. New powers will ensure that police responses to behaviour can be quickly and effectively carried out in the interests of public order and safety.

The Hon. Mr McLachlan asked a number of questions, I am advised, in his second reading contribution which largely relate to the Attorney-General's power to issue a declaration. An area can be declared to be a declared public precinct under proposed section 66N of the bill, I am advised. The declaration is made by the Attorney-General on his or her own motion or on the recommendation of the Commissioner of Police. Section 66N imposes some limits on the power of the Attorney-General to issue a declaration. A declaration can only be made if the Attorney-General is satisfied that there is a reasonable likelihood of conduct in the area posing a risk to public order and safety.

Furthermore, an area may not be a declared public precinct for longer than 12 hours in any 24-hour period unless special circumstances exist. A declaration must also be published in the Government Gazette and on a publicly available website. Although the bill does not require reasons to be published, there is nothing to prevent the Attorney-General from including those reasons on the website if he or she deems it appropriate. While the only requirement is that the declaration be published in the Government Gazette and on the website, it is anticipated that the Attorney-General would take further steps to make the public aware of such declarations. This may include media releases and social media updates.

Proposed section 66L also imposes a limitation on the power to make a declaration by providing that the powers to make a declaration or take any other action must not be used in a manner that would diminish the freedom of persons in this state to participate in advocacy, protest, dissent or industrial action. The Attorney-General, as with all persons invested with statutory powers to make decisions, will exercise his or her statutory discretion to make a declaration in a sensible and reasonable manner on the basis of evidence provided and not for an improper purpose.

It is a matter for the Attorney-General to decide whether the evidence presented to him or her demonstrates that conduct within the area will pose a risk to public order and safety and to issue a declaration accordingly. Hindley Street on a Friday and Saturday night is an obvious example due to the high concentration of licensed premises, alcohol consumption and large groups of people, which can lead to serious violent behaviour if not managed appropriately.

Whether or not a single incident will be enough for a declaration to be made will depend on the nature of the incident and the likelihood of it occurring again. If a declaration is made on the recommendation of the Commissioner of Police, they will obviously have reasons for making such a request. How this request is presented to the Attorney-General and what evidence might be needed to support such a request will be an operational matter for police and the Attorney, which may depend on the circumstances of a particular declaration.

However, sufficient information will need to be supplied so that the Attorney-General is satisfied that there is a reasonable likelihood of conduct in the area posing a risk to public order and safety and that the inclusion of the public place is reasonable, having regard to the identified risk. If the information is intelligence based or disclosed as police methodology and/or is the subject of public interest immunity, it is likely that SAPOL would recommend that these elements of the request not be made public.

The Hon. Mr McLachlan also queried how declarations might be challenged. Although there is no mechanism in the act to appeal the making of a declaration, that does not mean that a declaration will never be subject to scrutiny by the courts. It is open to the court to consider the circumstances of the declaration if a person wishes to defend charges arising from exercise of the power by police in a declared public precinct. Alternatively, a party may wish to seek judicial review of the decision to make a declaration.

The Hon. Mr McLachlan has also expressed concerns that the powers could be used to declare an area around someone's home or declare areas of the Parklands as a strategy to disrupt gatherings of certain communities as well as remove their children. Although it is technically correct that a declaration could be made in relation to such areas, as long as the Attorney is satisfied that there is a reasonable likelihood of conduct in the area posing a risk to public order and safety, such a declaration would not be in keeping with the stated policy of the amendments, which is to give the police more flexibility to deal with antisocial behaviour and public disorder, particularly alcohol-related disorder, before more serious offending occurs, in entertainment precincts like Hindley Street.

The removal of children from declared public precincts would only occur if the police officer was of the view that the child was in a situation of serious danger. This is not a new power. Police already have the power under section 16 of the Children's Protection Act to remove a child from dangerous situations. What the bill does is set out for police, when exercising powers under that act, what might constitute a situation of serious danger in a declared public precinct.

If a child is removed from a declared public precinct, the officer must, in accordance with section 16 of the Children's Protection Act, take the child home, unless the child is under the guardianship of the minister or it would not be in the best interests of the child to return home. This allows police officers to consider a child's circumstances, including whether it is safe for the child to return home or not. If the child is not returned home, the child must be delivered into the care of Families SA.

The intention of the legislation is to protect children from dangerous situations that place them at risk; that is, danger of being physically harmed or injured, or danger of abuse. It is also a preventative measure to remove children from a declared area if they are behaving in an offensive or disorderly manner or are about to commit an offence before any judicial processes are invoked.

The Hon. Mr McLachlan also asked whether vehicles could be stopped and searched under the provisions of the bill. Police already have broad powers to stop and search a vehicle, for example, under a section 68 of the Summary Offences Act. This legislation is not intended to apply to vehicles travelling through declared public precincts. As I have mentioned, police have broad powers to deal with vehicles, whether or not they are in a declared precinct, and these powers are sufficient.

Sections 66R and 66S of the bill set out search powers for police within a declared public precinct. The wording of section 66R makes it clear that powers to require a person to submit to a metal detector search are in relation to a person within a declared public precinct, not a person who may be considering entering the declared public precinct, which is the wording used in current section 72A of the Summary Offences Act. Section 72A already authorises police to conduct metal detector searches of any person who is in, or is apparently attempting to enter or leave, an area to which this section applies. However, section 72A only applies to licensed premises, the car park of licensed premises and gazetted public events.

Section 66S has been included in the bill to allow police to carry out general drug detection under section 52A of the Controlled Substances Act in a declared public precinct. Again, this is not a new power. Police can already carry out general drug detection in relation to a person and any property in the possession of a person if the person is in licensed premises or its car park, a public venue or its car park, a public passenger carrier or a public place, if authorised by a senior police officer. A declared public precinct could be the subject of such authorisation.

In providing that a declared public precinct is a place in which general drug detection can be carried out, section 66S removes the need for police to undertake the administrative process of making an authorisation under section 52A in relation to these areas each time a new one is declared. The use of these powers is governed by section 52A of the Controlled Substances Act and the associated regulations. For example, general drug detection means walking or otherwise placing a drug detection dog in the vicinity of a person or property, or using an electronic drug detection system in a manner prescribed by regulation.

Among other things, the regulations provide that, in relation to a person, samples of particulate matter may be taken from the outside of the person's clothing and the person's hands for the purpose of analysis to detect illegal substances. The person cannot be required to remove, undo or rearrange any clothing for the purpose of taking such samples and in taking samples, care must be taken to avoid disturbing the person's clothing.

The Hon. Mr McLachlan has also referred to SAPOL's annual report for 2014-15. Advice from SAPOL is that the intent of the legislation is to support and continue improvements in the safety of the community in public areas, including in entertainment precincts. If enacted, the bill would provide police with authorities to maintain or restore public order in defined circumstances and/or limited to a geographical area, where the risk of antisocial behaviour has been assessed as high. It is intended that the assisted ability to provide a safe precinct in which to deter or address antisocial or violent criminal behaviour, will increase use of public spaces by attracting families and law-abiding people to the area whilst continuing the decrease in public order and disorderly offences.

I am also advised that although SAPOL already has some powers in the Summary Offences Act and the Liquor Licensing Act that can be used to deal with incidences of public disorder, many of these powers have limitations, as they either rely on police arresting and charging a person in order to remove them from the area, or they are limited to licensed premises and cannot be utilised in surrounding laneways or other public spaces. The current powers are generally working. However, SAPOL and the government consider that the ability of officers to react and effectively manage inappropriate behaviour in real time could be enhanced by extending current powers and allowing them to be used within a declared area.

The concerns expressed by the Law Society, the Aboriginal Legal Rights Movement and the Youth Affairs Council of South Australia were considered as part of the consultation process and some amendments were made to the bill as a result. The government is of the view that the safeguards in the legislation are adequate and does not agree with ALRM and the Law Society that special circumstances should be defined in the legislation or that section 66N(1)(b) should be removed. The purpose of paragraph (b) is to give police the power to move on a person or persons from a declared precinct before an offence occurs. For example, if there was a large group of heavily intoxicated individuals congregating in one spot, an officer would be able to require them to leave the precinct under (b), but not necessarily under paragraph (a).

The offence in section 66P is expiable to act as a deterrent to antisocial behaviour in declared public precincts. It is based on section 117A of the Liquor Licensing Act and it allows police to fine a person without having to resort to charging the person with an offence, thereby diverting people away from the courts, but still giving the message that antisocial behaviour in these precincts is unacceptable. If the behaviour is serious enough to warrant a higher penalty, then police would still have the option of charging the person with an offence. As a result of the consultation process, the expiation fee was reduced from $500 to $250.

The Hon. Mr McLachlan also questioned how police will know that an individual has been barred from a declared public precinct. The new powers to request that a person leave a particular precinct, or to bar a person from a declared public precinct, give police additional tools to deal with those who are looking to cause trouble in entertainment precincts and to defuse situations that may result in violence, if left to escalate.

How police will prevent a person from re-entering a precinct if they have been barred is an operational matter for them. This operational task is currently undertaken and managed as part of the powers that police have to bar persons from licensed venues. SAPOL have advised that the system which supports licensed premises barring orders may be used (with modifications) by operational officers in declared public precincts. CCTV may also be used in support of subsequent investigations and/or court processes. Obviously, if a person tries to re-enter a precinct and is caught, they can be charged with an offence under the relevant section.

The Hon. Mr McLachlan also referred to a Victorian report into that state's stop and search powers and questioned why there are no reporting obligations in the bill. Rather than inserting any specific reporting requirements into the bill, the Attorney is happy to make an undertaking that, after a year of operation, he will make inquiries with the Commissioner of Police as to the operation of these laws and how they are being used by police.

As was made clear in the other place, the issue of safety in our city and on our streets is a very important issue. These powers will not be used to declare every street as a declared precinct. They will be limited in time, not only by days but also by hours, and they will be limited in place. The only people who would be negatively impacted by this legislation are those who want to come into the city and cause trouble. These people will soon realise that it is not a good idea to carry weapons or drugs or look to start fights in these precincts, as they may find themselves subject to a metal detector search for concealed weapons or general drug detection for illegal drugs and end up charged with a serious offence.

These powers are about making the city a safer place for law-abiding members of the public who simply wish to come into the city and have a good time and access public spaces. This legislation and these powers will assist police to manage entertainment precincts and to enhance the safety of entertainment precincts for all South Australians. Finally, just to further reflect on the policy behind this legislation, this is a public safety measure. The government is committed to creating a vibrant city and a vibrant state where people can go out and feel safe. I would again like to thank honourable members for their contributions and I look forward to dealing with this in the committee stage.

Bill read a second time.