22 January 2014

Protests and Move-on Directions in Victoria

The Summary Offences and Sentencing Amendment Bill 2013 (Vic), expected to be passed next week, amends the Summary Offences Act 1966 (Vic) to
provide for additional circumstances in which police members and protective services officers (PSOs) may direct a person to move on from a public place and clarifies the operation of those powers. The Bill also creates a new move-on-related exclusion order scheme within the Summary Offences Act 1966. The scheme will permit police members to apply to a court for an exclusion order in circumstances where a person has repeatedly been directed to move on from a particular public place. The order would have the effect of banning that person from the specified public place for up to 12 months.
It has unsurprisingly attracted attention as a mechanism for inhibiting protests and pickets.

Clause adds new circumstances in which police members and protective service offices (PSOs) may direct a person to move on from a public place under section 6 of the 1966 Act, i.e.—
  • the person has or persons have committed, within the last 12 hours, an offence in the public place; or
  • the conduct of the person or persons is causing a reasonable apprehension of violence in another person; or
  • the person is or persons are causing, or likely to cause, an undue obstruction to another person or persons or traffic; or
  • the person is or persons are present for the purpose of unlawfully procuring or supplying, or intending to unlawfully procure or supply, a drug of dependence; or
  • the person is or persons are impeding or attempting to impede another person from lawfully entering or leaving premises or part of premises.
The police and PSOs must have regard to the duration of the obstruction; and the conduct that is causing the obstruction. PSOs will only be able to use the powers in designated places such as train stations.

The amended s 6(4) of the 1966 Act will provide that police members and PSOs may give a move-on direction to "a person or persons". It enables police and PSOs to give one direction to a group rather than having to individually direct each person in the group to move on.

A new s 6A will enable arrest by police or PSOs of a person those officials reasonably believe has failed to comply with a move-on direction without a reasonable excuse. It is similar to s 458 of the Crimes Act 1958 (Vic) but goes beyond that provision in enabling a police member or PSO to arrest a person whom they reasonably believe has previously contravened a move-on direction even where the person was not caught "in the act" of contravening the exclusion order. A PSO who arrests a person must hand the individual into the custody of a police member as soon as practicable. An arrested person must not be detained unless the detention is necessary to ensure the attendance of the arrested person before court, to preserve public order, to prevent the continuation or repetition of the contravention of a move-on direction, or for the safety or welfare of members of the public.

The new section 6B deals with identity. It enables a police member to request a person to state their name and address where the member intends to direct the person to move on. It is an offence to comply such a request without a reasonable excuse. However, 6B(8) provides that the offence does not apply where a person who is requested to provide their name and address is not told that it is an offence to fail to comply with the request.

A person requested by a police member to state his or her name and address may request that member to state his or her name, rank and place of duty. It is an offence for the police member to fail to comply with such a request or to gives false details.

If a police member suspects on reasonable grounds that a person has provided a false name or address to them in response to a request made under s 6B(1), the member may request the person to produce evidence of their name or address. Section 6B(7) makes it an offence to fail to comply with such a request without a reasonable excuse. The exception in s 6B(8) noted above also applies to this offence.

Section 6D provides that a member of the police may apply to magistrates court for an exclusion order under s 6E, to be served on the respondent by ordinary service (consistent with s 394 of the Criminal Procedure Act 2009 (Vic)) as soon as practicable after filing with the Court. The order must state the name of the person to whom the order applies, the ground on which it was made, a description of the public place or part of the public place which the person must not enter, when the order takes effect, the period of the order and any conditions imposed.

Section 6E provides that the court may make an exclusion order if satisfied on the balance of probabilities that -
  • the person has repeatedly been directed to move on from the same public place or part of that place; and 
  • an exclusion order has not previously been made in respect of the person in relation to the specific directions relied upon in the application; and 
  • an exclusion order may be a reasonable means of preventing the person from engaging in further conduct in the public place, or part of the public place, that could form the basis for another move-on direction. 
In determining reasonableness the court may take into account -
  • the nature and gravity of the person's conduct that formed the basis for any of the previous directions to move on; 
  • whether the person has previously been the subject of an exclusion order; 
  • the likely impact of the exclusion order on the person, any other person affected by the conduct that formed the basis of any of the previous directions to move on, and public safety and order; and 
  • any other matter that the Court considers relevant.
Section 6E(5) enables the court to allow a person to enter the place for a specified purpose on a discretionary basis
This discretion to make conditions ensures that the operation of the orders do not have unintended consequences. For example, it may be appropriate to allow a person subject to an order to pass through an area if he or she would otherwise be prevented from entering their home, or to enter an area to visit family, or for work. It is also intended that the Court could limit the times that the person could enter the public place for such a purpose, such as by only allowing the person to enter on specific days, during specific times in the day or a certain number of times in a given period. The person would still be prohibited from entering the public place for any other purpose.
Usefully the Bill provides that the Chief Commissioner of Police must prepare a report for inclusion in the Victoria Police annual report as a guide regarding the extent to which the move-on related exclusion orders are being used, including the number of applications for exclusion orders in the financial year, the number of exclusion orders made in the financial year; and the number of people found guilty of contravening an exclusion order in the period.