26 August 2013

The Qld G20 Bill and the private sphere

The G20 (Safety and Security) Bill 2013 (Qld) [PDF] is starting to attract attention from privacy specialists and civil society advocates.

The proposed legislation is to provide police officers and 'appointed persons' with special powers to -
 1. protect the safety or security of persons attending any part of the Group of Twenty (G20) meeting, which is comprised of the G20 leaders’ summit in Brisbane in 2014, and the G20 Finance Ministers’ and Central Bank Governors’ meeting in Cairns in 2014, any official meeting of sherpas in Queensland in 2014 and any other G20 event; and
2. ensure the safety of members of the public from acts of civil disobedience in relation to any part of the G20 meeting; and
3. protect property from damage from civil disobedience in relation to an part of the G20 meeting; and
4. prevent acts of terrorism directly or indirectly related to the any part of the G20 meeting; and
5. regulate traffic and pedestrian movement to ensure the passage of motorcades related to any part of the G20 meeting is not impeded. 
The two most important of the meetings "under the general G20 umbrella" will be the 15-16 November 2014 Heads of State/Government meeting in Brisbane and the Finance Ministers’ meeting  in Cairns on 20-21 September of that year. The Queensland Police Service is responsible for providing security to G20 delegates and for all meeting and accommodation venues, motorcade routes and any other event associated with a G20 meeting. It is also responsible for "ensuring that members of the public and their property come to no harm as a result of any illegal activities that may be planned by people opposed to the G20 meeting". The Bill seeks to enhance "limited powers" available under the Police Powers and Responsibilities Act 2000 (Qld).

The Bill provides for establishment of 'inner and outer security areas' and 'motorcade security areas', ie 'restricted areas' covering venues for meetings and accommodation, access roads during the time required for the safe movement of the Leaders’ motorcade, and 'an outer security buffer zone' characterised as a declared area. Access to different security areas will be limited or conditional under the Bill.

From a law enforcement and privacy perspective the Bill  provides for
additional powers of search, powers to prohibit or exclude persons from security areas, powers in relation to prohibited items and the creation of specific offences under the Bill. 
It includes -
  • establishment of a prohibited persons list by the commissioner of the Queensland Police Service; 
  • requiring a person’s personal particulars and reasons for entering or being in a security area; 
  • searching persons and vehicles seeking to enter a restricted area or a motorcade area, including specific searches, as required;
  • enter and search premises within a restricted area;
  • restricting possession of prohibited items; 
  • removing obstruction items including a vehicle that might be left abandoned on a potential motorcade route; 
  • forfeiture to the State of prohibited items and obstruction items seized during the G20 meeting; 
  • discretion to close roads, private accesses and waterways;
  • limited right for motorcade drivers to disobey the Transport Operations (Road Use Management) Act 1995
  • creation of new offences applicable to the G20 meeting and events; 
  • presumption against bail for the limited period of the G20 meeting; 
  • appointment by the commissioner of non-State police officers to perform duties during the G20 period; 
  • appointment by the commissioner of appointed persons to assist with security arrangements for the G20 meeting; 
  • provision for confidentiality of information; and 
  • authorising limited disclosure of information by the commissioner. 
The Explanatory Memo [PDF] for the Bill notes that "there a number of provisions of the Bill that are not consistent with fundamental legislative principles".

Presumption against bail

Clause 82 provides for a presumption against bail for particular types of offences if committed during the G20 period in a security area or at any G20 meeting. The onus is on the accused to show cause why detention in custody is not justified. The presumption effectively allows for the detention of a person who has not yet been proven guilty of an offence.

The Memo comments that
The presumption against bail relates only to G20 related offences where an element of violence such as assault or damage to property is associated with the offence or the offence results from a person’s efforts to disrupt a G20 event. In these cases the person must show cause to the court or police officer that they will not commit another offence. Additionally, if the person is released on bail they will be required to enter an undertaking not to attempt to enter a security area or commit another offence against the Bill.
The clause is aimed at ensuring the safety and security of G20 delegates and members of the public against needless violence and to ensure that a person intent on committing acts of violence is not automatically granted bail so that he or she can continue to commit these acts. The presumption against bail lasts only for the G20 period, which in the main will be the 3 days before 17 November 2014. Following the expiry of the Act on 17 November 2014, the presumption against bail ends and a person refused bail may again apply for bail. 
Some persons unable to enter security areas

Clause 51 provides that prohibited persons (those who may pose a serious threat to the safety or security of persons or property in a security area; disrupt any part of the G20 or may, by the person’s actions opposing any part of the G20 meeting, cause injury to persons or damage to property outside a security area) must not enter any security area.

Clause 56 provides that excluded persons (those who by their actions indicate an intention to pose a threat to, or disrupt, the G20 meeting) are excluded from all or part of a security area. That exclusion "may involve a significant impact on a person’s ability to engage in employment, commerce, social activities or other activities". In the case of a prohibited person who is normally resident within a security area, alternative accommodation will be provided at State expense for the period of the G20.

The Memo states that
A person will not be excluded from a security area until their actions come within those described in clause 55 of the Bill. Nevertheless, provision is made in the Bill for an excluded person who may reside, for example, in the outer areas of a declared area to remain living at their residence provided they access their residence by the shortest route from outside the declared area. 
Although the employment and social activities of these persons will be affected if they are normally employed within, or socialise in, a security area, the period during which they will be affected will be minimal and may amount only to the 3 day meeting which occurs on a public holiday and a weekend. 
Warrantless Searches 

Part 4, Division 1 of the Bill provides for extensive searches of the person without warrant, including strip searches.

The Memo states that
A person is not normally searched with the authority [of] a warrant but rather by virtue of a statutory provision. In this case the Bill provides statutory provisions to allow for the search of persons in defined circumstances. Again those circumstances are restricted by precursors in the legislation and appropriate safeguards apply to a search. A basic search of a person will, in effect, be similar to those searches conducted prior to a person being permitted to enter a departure area at an airport. ... A specific search is a search of all
clothing worn by a person, a strip search of a person and/or a medical x-ray of the person.
Basic searches are nonintrusive and do not adversely affect the dignity of a person. They are necessary to ensure that prohibited items are not unlawfully possessed within security areas where they could be used to harm a G20 delegate or a spectator at a G20 event. Due to the large number of persons who could be subject to a basic search when entering a particular area, the imposition of safeguards to non-intrusive searches would create unnecessary delays in the movement of these persons.
A frisk search involves the search of a person conducted by quickly running the hands over the person’s outer clothing and examining anything worn or carried by the person if it is conveniently and voluntarily removed by the person. A frisk search can only be undertaken by a police officer of the same sex as the person searched. If a frisk search is to be conducted in a declared area, a police officer must first have a reasonable suspicion that the person may be in possession of a prohibited item, is a prohibited person or is an excluded person.
A specific search of a person is an intrusive search. However, there are legislative limitations as to when such a search can be made. In the case of a restricted area, the person must be unlawfully in the area and a police officer must reasonably suspect that the person may be unlawfully in possession of a prohibited item.
In a declared area, the police officer must reasonably suspect a person is unlawfully in possession of a prohibited item or is a prohibited person or an excluded person. The police officer must either have first conducted a frisk search and still hold a reasonable suspicion a prohibited item is in the possession of the person or must reasonably believe a frisk search will not locate a prohibited item. In the case of a motorcade area, a specific search may only be conducted if the person is unlawfully in the area or a police officer holds a reasonable suspicion that the person is unlawfully in possession of a prohibited item.
A specific search must be conducted by a police officer of the same sex as the person to be searched and must be conducted at a place where there is reasonable privacy for the person unless there is an immediate serious threat. 
Searches of Premises

The Bill provides for the power to enter and search premises in a restricted area without a warrant, with a police officer being authorised to enter and search any premises in a restricted area. The officer must use only the amount of force that is reasonably necessary in the circumstances.

The Memo notes that
a police officer is only authorised to enter a part of premises being used for residential purposes with the consent of the occupier of the part, under the authority of a search warrant or written law or if the police officer reasonably suspects that an offence may be committed within or from the premises that will endanger the safety of a person. For example, a police officer can enter a restaurant in a restricted area and walk an explosive detection dog through the restaurant. However, if the restaurant had an adjoining residence upstairs, the police officer could only search the residence with the consent of the occupier of the residence, under the authority of a search warrant or written law or if the police officer reasonably suspected that an offence may be committed within or from the residence that will endanger the safety of a person.
.... a police officer or an appointed person may use a dog trained for a weapons or explosives detection purpose to detect weapons or explosives in relation to a security area. The dog can be used in relation to a person, a building or other structure, a place, a vehicle and any other thing. The police officer or appointed person may take the detection dog into any place or onto any premises. For example, a police officer and detection dog may enter the underground car park of a building, whether it is commercial or residential, adjacent to a G20 accommodation venue and walk through that area to enable the dog to detect explosives that may have been placed in the car park.
Declaration without public notice

Under clause 13(2)(b)(i), a declaration may be made urgently because of a threat against the life of a G20 participant. The existence and content of such a declaration may not become  publicly known until the declaration is tabled in the Assembly. The Bill provides that a person can not be convicted of an offence involving the declaration until it is published or made known to the person.  The Memo comments that
the subclause is exceptional in that it can only have effect if a direct threat has been made to the life of a G20 delegate. In this case, alternate accommodation may need to be found for the delegate and the new venue not publically advertised for security purposes. In all other cases notification of additional security areas will be published on the police website and the declaration later tabled in Parliament by the Minister. As stated, the Bill provides that a person can not be convicted of an offence involving the declaration until it is published or made known to the person. 
Restrictions on normal activities

The Bill imposes restrictions on activities in a security area, "including a prohibition on possessing items commonly found in residences (e.g. kitchen utensils, baseballs and children's toys that make a loud noise)".

The Memo states that
There are no express safeguards to prevent an undue restriction on a person's ordinary activities in his or her own home. The person must prove a lawful excuse for the possession of a prohibited item or the carrying out of certain activities. ... Schedule 6 of the Bill provides a list of items which will be prohibited items in security areas. However, enforcement action cannot be taken with respect to a prohibited item unless it is left unattended in a security area or a person has possession of the item without lawful excuse. Clause 63(3) provides a number of examples of what may amount to a lawful excuse to possess a prohibited item.
From the examples it can be clearly seen that a person going about their lawful business will generally not be affected by the provision. For example, a family having a barbeque at South Bank Parkland may still possess and use a knife for the purpose of that barbeque. Likewise, a child playing with a radio controlled toy car in their backyard will not be affected nor will a resident within a security area who has possession of normal household items within their residence. Therefore, everyday activities within a home may continue without concern that an offence is being committed. Conversely, clause 63(3) lists what may not amount to a lawful excuse for possessing a prohibited item.
The examples indicate the type of activity which could pose a threat to the G20 meeting. For example, a person about to fire arrows into the Brisbane River from a longbow; a person discharging a blood coloured liquid into a restricted area; or a person electronically operates a model plane in a way that it could enter a restricted area. These types of activities could pose a threat to the safety of a delegate in that they could be injured by any of the items described. The examples give a good cross sectional indication of what may be possessed, the manner in which it may be possessed and what amounts to a lawful excuse. However, a lawful excuse could exist in countless other scenarios. A person possessing a prohibited item knows why they have the item and is therefore in the best position to offer a lawful excuse. For example, should a police officer stop a person carrying a knife in a declared area, only that person would be aware of why they are carrying the knife. 
Disclosure of personal details by a person

Under clauses 37 and 38, a person may be required to disclose personal details as a condition of entry to a security area or if a person is in a security area. Failure to comply with the requirement, without lawful excuse, will be an offence and may result in the person’s exclusion from the area. The Memo somewhat drily comments that the "requirement may be perceived as significantly impacting on a person’s privacy" before stating
the provision applies only to security areas. In order to ensure the safety and security of G20 delegates and members of the public, it may be necessary at times to identify a particular person within a security area to establish whether the person may pose a threat to delegates or members of the public. Obtaining the person’s personal details such as name and address is the best method of being able to check against a security database whether a person may pose a threat. The provision will be in operation for a limited period and is restricted to G20 purposes. 
Clause 38 provides that an officer has the power to stop a person and require the person to disclose personal details if the officer reasonably suspects the person has committed, or is about to commit, an offence that is intended to, or may, disrupt a G20 event or is posing or may pose a serious threat to the security of a G20 event. Importantly, this power can be exercised by a police officer outside a security area and the person can be detained for as long as is reasonably necessary for the purposes of the clause. An officer who gives a requirement to a person to disclose the person’s personal details must, if reasonably practicable, warn the person that failure to comply with the requirement is an offence for which the person may be arrested. It further provides that the police officer may also require the person to remove the person’s headwear and if the person refuses to do so, remove any headwear the person is wearing.


Clause 50 allows the Police commissioner to compile a prohibited persons list, ie a list of persons who should not be permitted entry into any security area. The list may include identifying details and a photo of a person whose name is on the list. An individual may be listed if the commissioner is reasonably satisfied that the person may pose a serious threat to the safety or security of persons or property in a security area, may by the person’s actions opposing any part of the G20 meeting cause injury to persons or damage to property outside a security area or may disrupt any part of the G20 meeting. If the Commissioner places a person’s name on the prohibited persons list and it is reasonably practicable to do so, the person must be personally served with a notice stating that the person’s name is on the list, that the person must not enter any security area until the end of 17 November 2014 and that, if the person believes the person’s name should not be included on the list, the person may make a written submission to the commissioner by a stated date about the inclusion. If the person makes a written submission to the commissioner by the stated date, the commissioner must consider the written submission and make a decision to either retain the person’s name on the list or to remove the person’s name from the list.

The Memo states that
In circumstances when it is not reasonably practicable to personally serve a person with a notice as mentioned in clause 51(1), the commissioner may publicly publish a notice stating the person is a prohibited person and the person’s photo and description. Public publication is further explained in subclause (3). It is not generally intended that a prohibited person’s details will be publicly released. The clause recognises that while a prohibited person may pose a threat to a G20 event, the person may not have been convicted of a G20 related offence.
As such subclause (4) confirms that the prohibited persons list is not required to be made publicly available by the commissioner. Nevertheless, it is to be noted that subclause (4) would not preclude an application under the RTI Act. However, it is highly unlikely that such a list would be released, for example to the media, if an RTI application was made, as the information would consist of an individual’s personal information, disclosure of which would be contrary to the public interest. [T]he prohibited persons list may be circulated by the commissioner to a police officer, an appointed person, any person or agency providing security for any part of the G20 meeting including providing security for a G20 participant, the Commonwealth G20 Taskforce and the department of the Commonwealth in which the Migration Act 1958 is administered. Subclause (6) further provides that if under clause 51 the commissioner decides to remove a person’s name from the prohibited person’s list, the commissioner must give written notice to any person or agency to whom that list was circulated.
... Clause 57 provides a power for a police officer, who excludes a person from a security area under clause 56, to take a photo of the person and detain the person for a reasonable time for that purpose. A photo taken under subclause (1) may be circulated to a police officer, an appointed person, the department of the Commonwealth in which the Migration Act 1958 is administered or a person or agency involved in providing security or intelligence for any part of the G20 meeting. 
Disclosure of a person’s personal details by the commissioner

Under clause 86, the Commissioner may disclose any information in the possession of the police service to various State, Commonwealth and foreign bodies if the disclosure relates to the safety or security of the G20 meeting. The information may include private information about an individual such as the person’s criminal history.

The Memo indicates that disclosure of information must be for a purpose relating to the safety and security of the G20 meeting, eg disclosure of an intelligence document about a person who intends to commit an act of violence at a G20 event or it may be the disclosure of an intelligence report, criminal history or information relating to the background and associates of a person who is to hold a Commonwealth accreditation or access approval. Disclosure can only be made to a Queensland government agency; the Commonwealth G20 Taskforce; an agency of the Commonwealth, another State or a foreign government; or the police service or police force of the Commonwealth, another State or a foreign government. Each of those agencies have involvement in security of the G20 meeting or employing persons to provide security at the meeting.
It would be ludicrous to suggest that the commissioner could not advise the Commonwealth that a security company it may employ was operated by organised criminals with a history of violence. Equally, the provision of security to G20 participants and members of the public would be seriously impaired if the commissioner could not exchange information with security agencies such as ASIO or with police services or forces regarding persons who may pose a serious threat to a G20 delegate or indirectly to a member of the public.