The Western Australian Parliament has passed the Prohibited Behaviour Order Act 2010. This Act enables a court to prohibit a person aged 16 years or over who has been convicted of an offense with an anti-social element from engaging in otherwise lawful behaviour that the court regards likely to increase the chances that the person will commit a further such offense. The Act provides that details of the person and the order will be posted on a departmental website even in the case of the young and that anyone is free to republish that information. This paper reviews the traditional stance of the law relating to publication of child offending before discussing the pros and cons of how prohibited behaviour orders will affect this position. ...
It is accepted that while publicity in relation to criminal proceedings is essential to ensure a fair and impartial justice system, the glare of publicity can also have negative effects for the subject of that publicity. In relation to adults these negative effects are accepted and generally thought to be deserved. However, it has historically been recognised that the young need protecting from publicity and therefore legal safeguards to ensure this protection is delivered are in place throughout Australia.
The PBOs in Western Australia will remove the right of the young to anonymity. The State government submits that this is necessary to ensure effective enforcement, deterrence and reassurance of the public. PBOs are modelled on a variant of the ASBO in the United Kingdom, for which publicity is likewise the norm. However, upon closer examination it is questionable whether making the community responsible for policing anti-social behaviour is effective at combating such behaviour and reassuring the community. Given the high rate at which similar orders in the United Kingdom are breached it remains unproven that the threat of publicity acts as an effective deterrent, in particular on young persons. Due to their immaturity and still-developing ability to control their impulses the young may either not appreciate the reality of the threat or may underestimate the future harm that may ensue from publicity. Some may even welcome the publicity as a badge of honour and value the immediate gratification of belonging to an “outside group”. Thus publicity may have the unintended consequence of cementing anti-social behaviour. Social exclusion of those labelled “anti-social” is also likely to occur where the community is made aware of “who in their midst has been responsible for such outrageous behaviour”. Strategies encouraging active citizenry to police anti-social behaviour operate on the basis of categorical suspicion. The young, and especially Aboriginal youth, are particularly susceptible to being demonised and labelled deviant; a process which is likely to be compounded by sensationalist reporting. This in turn can actually undermine public confidence in the authorities and increase, rather than decrease, the fear of criminal and anti-social behaviour, thus undermining one of the purposes of publicity.
The advantages of publicity in the case of a PBO do not outweigh the negative effects which may flow from publicity in the case of the young. However, there has been a rigid adherence in the United Kingdom to the belief that publicity is a necessary corollary to ASBOs. This belief has been accepted without question in Western Australia. This desire to publicise, even if the advantages thereof are disputed, may actually be part of a larger picture of a gradual shift away from the conviction that the young need protecting from publicity. The movement away from the welfarist approach to a justice model for dealing with young offenders is concomitant with the belief that the young should be held to take responsibility for their actions. Under this approach, young persons who persistently engage in anti-social behaviour are thought to no longer need protecting from publicity because they have already chosen to reject society’s norms. Such an argument fails to appreciate that anti-social behaviour is in many cases a normal part of growing up and will not necessarily lead to a criminal career. Labelling and shaming can compound any temporary rebelliousness and cement rather than help shift the young person away from such behaviour.
This paper has not been concerned with efficacy of ASBOs or PBOs but merely with their effect on anonymity protection for young offenders. The aim was not therefore to argue here whether or not such orders are likely to be effective and should or should not have been introduced. The authors’ concern is that publicity should not be accepted without question as an essential part of a PBO in the case of the young. The right of the young to anonymity has been protected for good reasons which far outweigh any of the potential benefits of publicity. Publicity is likely to have damaging effects on the young and on society by encouraging suspicion in the community, progressing social exclusion and the fear of crime. It is therefore urged that the right of the young to anonymity be protected and that there be a presumption against publication in the case of minors.Another perspective on anonymity and registration is provided in the speech by Raymond Stevens MP, Member for Mermaid Beach in the Queensland Parliament.
Endorsing the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Bill 2013 (Qld) Mr Stevens states [PDF] that
My beloved region of the Gold Coast unfortunately seems to be a place where bikie gangs have infiltrated, with their clubhouses and headquarters making their homes in the region. While many do have legitimate businesses, the ones who are involved in illegal businesses are going to get caught. The proceeds from their criminal activities will be seized under these new laws. In a lot of these businesses dirty money is being cleaned through these front-door legal activities.
A recent story that has been in the media is of bikie gangs infiltrating the Victorian police force. Bikie gang members have been cultivating, compromising and corrupting police officers. They have been offering police officers access to strip clubs and drug related activities. They will do anything and stop at nothing to continue their illegal activity. The speed and accessibility of this sort of corruption which is causing a lot of damage is immense and usually drug related. These networks infiltrate legitimate areas of business to corrupt for their own gain. They hide behind legitimate businesses, such as gymnasiums, where there is a lot of drug and steroid use. I think peptides are the latest ones they are all promoting. ...
Tattoo parlours are very much a focus for this bikie gang behaviour. There is no doubt in my mind that these tattoo parlours that have popped up all along the Gold Coast—and I am sure in the electorates of other members; there are plenty of heads nodding—are the way that bikie clubs clean their money. Once this bill becomes law the Attorney-General will be able to pursue those ill-gotten gains. I have a suggestion in relation to tattoos that the health minister might look at. Under the Health Act there should be a register of people getting tattoos so that we can identify those people getting tattoos rather than have John Smith, Bill Brown and all the other fake names of people who are paying $5,000 or $10,000 for tattoos. This is a way for these bikie clubs to clean their money.Next stop barcodes on bikie btms (and those of barristers, bogans and anyone else getting inked)?
In Western Australia the Government has introduced the Criminal Investigation (Identifying People) Amendment Bill 2013 [here], touted as requiring Muslim women to remove a burqa or niqab to prove their identity to WA. The amendment aims to require "a person to remove headwear or do other things to facilitate the officer being able to confirm a person's identity", with police gaining explicit powers to detain the person pending compliance.The requirement will apply to an item of clothing, hat, helmet, mask, sunglasses or "any other thing worn by a person that totally or partially covers the person's head".
Enthusiasts have called for a comprehensive ban on the burqa, unlikely to be constitutional. 'Section 116 of the Australian Constitution and Dress Restrictions' by Anthony Gray in (2011) 16(2) Deakin Law Review 293 for example comments
In this article, I will consider constitutional (and discrimination) issues that would arise if an Australian parliament enacted legislation with the effect, amongst other things, of prohibiting the wearing of particular items of clothing often thought to have religious significance, in particular the hijab, burqa or niqab. While the ban could apply to other items of clothing or jewellery of significance in religions other than Islam, given that most of the current debate concerns symbols of Islam, I will use this particular context as the focus of discussion. In so doing, I will draw briefly upon the rich jurisprudence concerning these issues in other jurisdictions, where much more litigation has taken place regarding the question than in Australia. I will also consider briefly whether a different result would apply if the ban were passed at state level. This is not an abstract argument; a current Senator in the Australian parliament has personally called for a burqa ban, and private members’ bills have been introduced in New South Wales and South Australia to introduce such a ban, at least in some circumstances.
In Part II I set the statutory framework for the discussion that follows. In Part III the meaning of the wearing of the hijab and burqa is considered. Part IV considers how laws banning the wearing of religious dress or symbols have been considered in various courts. In Part V I consider the validity of a Commonwealth law that had the effect of banning the wearing of some religious dress or symbols. ...
If the Commonwealth Government passed a law (otherwise constitutional) banning the wearing of religious dress or symbols, the High Court should read the principle of religious freedom in section 116 broadly. It should not validate a law just because the Commonwealth argues the law was passed for other (legitimate) purposes; in some cases, it is submitted courts in other jurisdictions have been too willing to accept at face value government arguments that bans on religious dress or symbols were necessary in pursuit of legitimate objectives of equality and neutrality, or that effects on religious freedoms were incidental (and so not considered to be objectionable). While the precise meaning of the wearing of items such as the hijab or burqa is open to interpretation, on at least some interpretations such wearing is supported by the Qur’an; it is highly contentious to extrapolate from the wearing of such items of clothing that oppression, subjugation or ‘extremism’ is being reflected.
Such a ban might also infringe the Racial Discrimination Act 1975 (Cth); for a Commonwealth law, this is not significant since the Commonwealth can amend its own legislation; in relation to a state law which purported to implement a ban, the court would have to consider directly whether Islam followers are an ‘ethnic group’ within the meaning of the Act; and then whether a blanket state ban on all face covering would be inconsistent with the RDA, in particular section 10. There is a strong argument that Muslim followers do comprise an ethnic group, and that section 10 might be used to invalidate a state attempt to ban face covering, given given its effect on those of Muslim ‘ethnicity’, compared with other ethnicitiesThat is consistent with works such as 'Can and Should Burqas Be Banned? - The Legality and Desirability of Bans of the Full Veil in Europe and Australia' by Anne Hewitt and Cornelia Koch in (2011) 36(1) Alternative Law Journal 16 and 'The Full Face Covering Debate: An Australian Perspective' by Renae Barker in (2012) 36(1) University of Western Australia Law Review.
